V 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CHICAGO  STAR 
BINE>Fr'Y 

124  S.  9prirr    ;t,  L 

Tel.  Mutual  4434 


B-o  tacu.  Repe^*      ,,, ,,,    , 

'  OPINIONS 

K£>  x,,-v-       ^ 


ON    VARIOUS    POINTS    OF 


ENGLISH  JUEISPRUDENCE, 

CHIEFLY    CONCERNING   THE 

• 

COLONIES,  FISHERIES  AND  COMMERCE 
OF  GREAT  BRITAIN; 


COLLECTED   AND  DIGESTED,   FROM  THE   ORIGINALS  IN   THE  BOARD  OF 
TRADE,   AND  OTHER  DEPOSITORIES. 


BY  GEORGE  CHALMERS,  Esa.,'  F.R.S.,  S.A. 


BURLINGTON: 
C.    GOODRICH    AND    COMPANY. 

1858. 


cSB 

^t. 

C353 


PREFACE 

TO  FIRST  AMERICAN   EDITION. 


The  answers  of  the  wise,  though  last  in  order,  are 
classed  with  the  Principum  placita  of  a  servile  court 
among  the  sources  of  law.  "  Constat  autem  jus  nostrum 
quo  utimur  aut  scripto  aut  sine  scripto,  ut  apud  Grsecos, 

'  TWV  vofiwv  61  (JLEV  sj"ypaq>oi,  61  Ss  aypa<poi,'  id  est,    legum  aliaB     SUnt 

scriptae,  aliae  non  scriptge.'  Scriptum  autem  jus  est 
le'x,  plebiscitum,  senatus  consultum,  Principum  placita, 
magistratuum  edicta,  responsa  prudentum."  Juris  In- 
stitutionum  liber  primus. 

In  these  United  States  of  America,  rejoicing  in  the 
sovereignty  we  have  now  possessed  nearly  one  hundred 
years,  we  are  too  ready  to  forget  the  history  of  the  past. 
But  if  we  permit  ourselves  to  forget  it,  our  descendants 
will  take  us  to  task,  and  though  selfishness  may  say, 
"  what  has  posterity  done  for  us",  let  us  remember  what 
our  ancestors  have  done.  This  book,  well  studied,  will 
repay  the  American  reader  for  nis  pains.  Colonial  and 
provincial  domination,  under  which  the  American  colon- 


748393 


.'*•.    ':•&  \  PREFACE 

ies  so  ldng*§uffered,  is  at  an  end,  but  its  records  deserve 

•  *  •*     * 

y*  to-. be.  treasured  up.     "  Obsecro   vos   (says    Canuleius  in 

%  •"r-fcrVy,)  si  non  ad  fastos,  non  ad  commentarios  pontificum 

.  "•*•:*•.*•"     admittimur  ;  ne  ea  quidem  scimus,  quse  omnes  peregrini 

etiam  sciunt  1     Consules   in  locum  regum  successisse  ? 

nee  aut  juris  aut  majestatis  quidquam  habere,  quod  non 

in  regibus  ante  fuerif?"  lib.  4.  cap.  3. 

The  opinions  of  the  Attorneys-General  of  the  United 
States  have  been  published,  and  their  value  is  known 
to  all  lawyers.  It  cannot  be  said  the  present  publica- 
tion possesses  the  same  practical  value,  but  tempus  edax 

«^ 
rerum  destroyed  even   the  lintei  libri  of  ancient  Rome, 

and  the  American  press  may  be  said  not  to  be  ill  em- 
ployed in  reproducing  a  book  forgotten  in  Europe,  ex- 
cept by  the  observing  few.  The  adjoining  British  colon- 
ies, the  growth  .  of  which  it  is  so  pleasant  for  us  to  wit- 
ness, and  who  so  largely  avail  themselves  of  our  publi- 
cations, will  feel  an  interest  in  this  production  of  our 
press.  It  is  quite  as  much  dedicated  to  them  as  to  our- 
selves. In  the  might  and  majesty  of  the  people  of  the 
United  States  of  America,  we  can  now  say  with  the  poet, 
while  we  chronicle  the  times  of  dependence  long  past : 
"  Una  nota  est  Martis  Nonis  :  sacrata  quod  illis 

Templa  putant  lucos  Vejovis  ante  duos. 

Romulus  ut  saxo  lucum  circumdedit  alto  : 

Quilibet  hue,  inquit,  confuge,  tutus  eris. 

0  quam  de  tenui  Romanus  origine  crevit !" 
Ovidii  Fastorum  lib.  3.  v.  429  et  seq. 


BIOGRAPHICAL  NOTICE 

OF  THE  EDITOR. 


George  Chalmers,  the  compiler  of  the  present  volume, 
was  born  at  Fochabers  in  Scotland  in  the  year  1742, 
and  educated  at  King's  College,  Aberdeen.  He  studied 
the  law  at  Edinburgh,  and  in  1763  accompanied  an  un- 
cle to  America,  to  assist  him  in  the  recovery  of  certain 
lands  claimed  by  him  in  Maryland.  He  soon  establish- 
ed himself  in  the  practice  of  his  profession  at  Baltimore, 
and  in  a  few  years  acquired  an  extensive  and  lucrative 
business.  In  the  revolutionary  struggle,  he  espoused 
the  royalist  cause,  and  in  the  great  question  relative  to 
the  payment  of  tithes,  he  appeared  in  behalf  of  the 
clergy.  In  this  controversy  he  was  opposed  by  the 
celebrated  Patrick  Henry  of  Virginia,  and  was  admitted 
to  have  displayed  much  learning  and  ability  in  sustain- 
ing the  claims  of  the  Episcopal  church,  but  the  violence 
of  party  spirit,  aggravated  perhaps  by  the  part  he  had 
taken  in  this  dispute,  soon  compelled  him  to  sacrifice 
his  professional  prospects  and  seek  for  refuge  in  his  na- 
tive country. 


Vi  BIOGRAPHICAL    SKETCH 

Mr.  Chalmers  arrived  in  England  about  the  year  1775, 
and  immediately  devoted  himself,  with  much  assiduity, 
to  the  study  of  the  history  of  the  British  colonies  in 
North  America.  His  first  work,  the  Political  Annals 
of  the  United  Colonies,  displayed  great  diligence,  re- 
search, and  fidelity,  and  has  been  of  essential  use  in 
facilitating  the  labors  of  later  historical  investigators 
in  the  same  field.  The  first  volume  was  published  in 
1780,  but  the  second  unfortunately,  never  appeared. — 
In  1786,  Mr.  Chalmers  was  appointed  chief  clerk  to  the 
committee  of  Privy  Council  charged  with  "  the  con- 
sideration of  all  matters  relating  to  trade  and  foreign 
plantations,"  and  he  continued  to  discharge  the  duties 
of  this  office  for  nearly  fifty  years.  The  situation  gave 
him,  of  course,  the  freest  access  to  all  the  archives  con- 
nected with  the  colonial  interests  of  Great  Britain,  and 
furnished  him  abundant  facilities  for  the  prosecution  of 
his  favorite  studies. 

Among  the  numerous  works  of  which  Mr.  Chalmers 
was  the  author  or  compiler,  we  may  mention,  in  addition 
to  the  Annals  and  this  collection  of  Opinions,  a  Collection 
of  Treaties  between  Great  Britain  and  other  Powers  in 
2  vols.  8vo,  London  1790  ;  Life  of  Thomas  Paine,  author 
of  the  Rights  of  Man,  (tenth  edition)  1793,  under  the 
assumed  name  of  Francis  Oldys  ;  a  Chronological  Account 
of  Commerce  and  Coinage  in  Great  Britain  from  the  Res- 
toration to  1810,  London,  1810 ;  Considerations  on 
Commerce,  Bullion,  Coin,  Circulation,  and  Exchange 


OP    THE    EDITOR.  V11 

London,  1811;  but  he  is  most  widely  known  among  general 
readers  by  his  Life  of  Mary  Queen  of  Scots,  London  1818, 
2  vols.  4to,  reprinted  in  3  vols.  8vo.  and  his  Caledonia,  or 
an  Account,  Historical  and  Topographic,  of  North  Britain, 
vol.  I.  London,  1807  4to,  vol.  II.  London,  1810  4to,  both 
of  which  are  works  of  great  and  permanent  value.  The 
Caledonia  was  never  completed,  but  it  was  the  principal 
original  work  of  his  life  and  occupied  a  large  proportion 
of  his  leisure  hours  for  a  period  of  more  than  twenty 
years.  It  was  designed  to  extend  to  five  volumes,  but 
though  he  had  made  extensive  researches  for  the  pur- 
pose of  completing  it,  the  materials  he  had  collected 
were  not  found,  at  his  death,  in  such  a  state  as  to  war- 
rant their  publication. 

He  died  at  London  on  the  31st  of  May  1825,  at  the 
age  of  eighty-three,  and  as  his  last  illness  was  a  short 
one,  he  kept  up  his  literary  activity  to  nearly  the  close 
of  his  life.  The  present  is  not  a  fit  occasion  for  a  criti- 
cal appreciation  of  Mr.  Chalmers'  literary  ability,  but  the 
value  of  his  contributions  to  the  domestic  history  of 
Great  Britain,  and  to  that  of  her  colonies  and  their  re- 
lations to  the  mother  country,  is  admitted  to  be  great. 
The  work  a  new  edition  of  which  is  now  offered  to 
the  public,  though  relating  to  questions  not  much  dis- 
cussed at  present,  will  be  found  to  touch  upon  principles 
whose  practical  bearing  is  even  yet  by  no  means  ex- 
hausted, and  it  is  believed  to  possess  scarcely  less  in- 
terest for  the  citizens  of  the  United  States,  than  for  the 


BIOGRAPHICAL    SKETCH. 

people  of  those  American  Provinces  which  still  remain 
connected  with  the  British  crown.  It  is  in  fact  the 
most  complete  and  authentic  record  we  possess  of  the 
current  of  legal  opinion  in  England  upon  the  relations 
between  that  country  and  her  American  colonies,  and,  as 
such,  has  been  very  frequently  referred  to  by  the  ablest 
American  jurists  in  the  discussion  of  the  great  ques- 
tions it  is  so  well  calculated  to  elucidate.  Having  never 
been  reprinted  since  its  first  appearance  at  London  in 
1814,  it  has  become  extremely  rare,  and  the  publishers 
believe  that  they  are  rendering  a  useful  service  to  the 
professional  and  the  historical  inquirer,  by  making  more 
generally  accessible  so  valuable  a  repository  of  legal 
and  political  doctrine. 


BIOGRAPHICAL    NOTICES 


OF   AUTHORS. 


Page. 

A  land,  Sir  John  Fortescue,  Lord  Fortescue.  25 

Arden,  Sir  Richard  P.,  Lord  Alvanley.  36 
Chalmers.   George,  Clerk  of  Committee  of  Privy  Council;           v 

Cook,  Sir  John.  King's  Advocate.  23 

Compton,  Henri/,  Bishop  of  London;  22 

De   Grey,  Sir    William.  Lord  Walsingnam.  35 

De   Witt,  John,  Keeper  of  the  Seals.  39 

Eyre,  Sir  Robert,  Chief- Justice;  24 

Exton,  Dr.   Thomas,  Of  the  Commons.-  19 

Fane,   Francis,  Counsel  to  Board  of  Trade.'  26 

Finch,  Heneage,  Solicitor-General.  20 

Gibson,  Edmond,  Bishop  of  London.  26 

Har court,  Sir  Simon,  Lord- Chancellor.  23 

Hawies,  Sir  John,  Solicitor-General.  22 

Hedges,  Sir  Charles,  King's  Advocate.  23 

Hendman,  Humphrey,  Doctor  of  Civil  Law.  23 

Henley,  Sir  Robert,  Lord-Chancellor.  32 
Holt,  Sir  John,  Chief-Justice.                                             ^  ..."    20 

Jackson,  Richard,  Privy- Counsellor.  37 

Jenkins,  Sir  Lionel,  Privy-Counsellor.  19 

Jones,  Sir    William,  Attorney- General.  19 

Kemp,    William,  Attorney-General,  of  New  York.  37 

Kenyon,  Sir  Lloyd,  Chief-Justice.  85 

King,  Sir  John,  Treasurer  of  Inner  Temple^  19 

King,  Sir  Peter.  Lord-Chancellor;  24 
B 


X  BIOGRAPHICAL    NOTICES, 

Page. 

Lamb,  Sir  Matthew,  Counsel  to  Board  of  Trade.  37 

Levinz,  Sir  Creswell,  Attorney-General.                 .  20 

Lloyd,  Sir  Nathaniel,  Advocate-General.  23 

Lloyd,  Sir  Richard.  Baron  of  the  Exchequer.  34 

Lutwyche,   Thomas,  King's  Counsel.  28 

Macdonald,  Sir  Archibald,  Privy-Councillor,  36 

Marriot,  Sir  James,  Vice-Chancellor.                    ,  37 

Montague,  Sir  James,  Chief-Baron.  24 

Murray,  Hon.    William,  Chief-Justice.  29 

Newton,  Henry,  King's  Advocate.  23 

Northey,  Sir  Edward.   Attorney-General-  23 

Norton,  Sir  Fletcher,  Lord  Grant!  ey.  34 

Parker,  Sir   Thomas,  Earl  of  Macclesfield.  23 

Pratt,  Charles,  Earl  Camden.  32 

Raymond,  Sir  Robert,  Chief-Justice.  25 

Reeve,  Sir   Thomas,  Chief-Justice.  28 

Ryder,  Sir  Dudley,  Chief-Justice.  29 

Sawyer,  Sir  Robert,  Attorney-General.  20 

Smith,   William,  Chief-Justice  of  Quebec,  3T 

Somers,  Sir  John,  Lord-Chancellor.  21 

Strange,  Sir  John,  Master  ©f  the  Rolls.  29 

Strahan,  Dr.    William,  Of  the  Commons.  25 

Talbot,  Charles,  Lord-Chancellor.  28 

Temple,  Sir    William,  Master  of  the  Rolls,  39 

Thompson,  Sir    William,  Baron  of  the  Exchequer.  26 

Treby,  Sir  George,  Chief- Justice.  21 

Trevor,  Sir  Thomas,  Chief-Justice,  22 

Ward,  Sir  Edward,  Chief-Baron.  21 

Wearg,  Sir  Clement,  Solicitor-General.  27 

West,  Richard,  Chancellor  of  Ireland.  26 

Willes,  Edward,  Justice  King's-Bench.  35- 

Willes,  Sir  John,  Chief-Justice.  28 

Winnington,  Sir  Francis,  Solicitor-General.  19 

Wynne,  Sir    William,  Vicar-General.  38 

Wood,  Robert,  Doctor  of  Civil  Law.  23 

Yorke,  Hon.  Charles,  Lord-Chancellor,  33 

Yorke,  Sir  Philip,  Chief- Justice.  2T 


CONTENTS. 


THE   KING'S   PREROGATIVE   ABROAD. 

I.     OF  HIS  ECCLESIASTICAL  AUTHORITY. 

Page. 

The  opinion  of  the  Attorney-General  Northcy,  on  this  subject  in 
1705,  relating  to  the  Jesuits  and  papists  iu  Maryland.  42 

The  letter  of  the  Right  Rev.  Dr.  Gibson,  the  Bishop  of  London, 
to  the  Duke  of  Newcastle,  upon  the  right  of  the  independent  min- 
isters in  New  England,  to  hold  synods.  44 

The  joint  opinions  of  Attorney  and  Solicitor- General,  Yorke  and 
Wearg,  in  1725,  on  the  same  subject.  45 

Mr.  West's  opinion,  in  1719,  on  the  king's  right  to  present  to  va- 
cant benefices  in  Virginia.  53 

Two  opinions  of  the  Attorney-General,  Northey,  relative  to  the 
clergy  of  Virginia.  56 

The  same  lawyer's  opinion  on  Popery  in  Maryland.  60 

The  Bishop  of  London's  observations  on  a  law  of  Virginia  for  the 
suppression  of  Vice.  63 

The  Attorney-General,  Northey's,  opinion  on  the  granting  of  let- 
ters of  administration  on  the  same  estate,  both  in  England,  and  in 
the  colonies.  63 


II.     OF  THE  KING'S  CIVIL  AUTHORITY. 
First.     OF  HIS  EIGHTS  OF  PROPERTY. 

The  Lord  Chief- Justice  Holt's  opinion,  3d  June,  1690,  that  the 


Xll  CONTENTS 

Page. 
King  might  take  away  the  Charter  of  Maryland,  (Lord  Baltimore's,) 

it  being  in  a  case  of  necessity.  65 

The  opinion  of  the  Attorney  and  Solicitor-General,  Northey  and 
Harcourt,  that  the  Queen,  having  a  right  to  govern  all  her  people, 
may  resume  a  Government  under  a  Koyal  Charter  that  had  been 
abused.  6<" 

The  opinion  of  the  Attorney-General,  Northey,.  on  the  Queen's 
prerogative  to  receive  a  surrender  of  the  Pennsylvania  Charter.  6.7 

The  opinion  of  the  Attorney  and  Solicitor- General  Ryder,  and! 
Murray,  on  the  King's  prerogative  to  receive  the  resignation  of  the 
Charter  of  Georgia,  and  to  establish  a  Jloyal  Government.  69 

The  opinion  of  the  Attorney-General  Northey,  on  the  surrender 
of  the  Bahama  Charter.  72 

On  the  King's  Right  to  the  three  lower  Counties  on  Delaware, 
by  Attorney  and  Solicitor-General,  Northey  and  Thompson.  73 

Of  the  King's  authority  over  Guernsey  and  Jersey,  by  the  At- 
torney and  Solicitor,  R-yder  and  Strange.  88 

Of  the  King's  right  to  the  islands  in  the- river  Delaware,  by  the 
Attorney  and  Solicitor  General  Raymond  and  Yorke,  in  1721.  90 

» 

Of  the  King's  right  to  certain  waste  lands  in  New  Hampshire, 
by  the  Attorney  and  Solicitor  General,  Ryder  and  Murray.  91 

Mr.  West's  opinion  how  far  the  King  has  a  right  to  grant  ceded 
lands.  105 

The  opinion  of  the  Attorney  and  Solicitor,  Yorke  and  Talbot, 
whether  the  King's  right  to  the  lands  of  Pemaquid  remain  in  the 
Crown.  106 

Of  the  King's  right  to  the  woods  iu  the  Province  of  Maine,  by 
Mr.  West,  133 

Mr.  Fane's  opinion  on  the  King's  right  to  the  woods  in  New  En- 
gland. 137 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Talbot,  on  the  King's  right  to  the  woods  in  New  England.  139 

Third.     OF  THE  KING'S  GRANTS. 

The  opinion  of  the  Attorney-General  Treby,  in  1689,  on  a  grant, 
for  life,  of  Auditor  of  the  Virginia  revenue.  1 60 


CONTENTS  Xlll 

Pagt. 
Of  the  King's  right  to  mines  in  New  Jersey,  by  the  Attorney 

and  Solicitor,  Raymond  and  Yorke.  141 

Of  the  royal  right  of  escheats  in  Virginia,  by  the  Attorney  and 
Solicitor-General,  Somers  and  Trevor.  142 

Of  the  peculiar  Escheats  in  New  Jersey,  which  was  in  the  hands 
of  Proprietaries,  by  the  Attorney-General  Northey.  143 

On  the  escheat  of  negroes,  in  Jamaica,  by  the  Solicitor-General 
Montague.  144 

On  the  escheat  of  ambergris,  in  Jamaica,  by  the  same  lawyer.         146 

On  the  escheat  of  lands  and  negroes  in  Jamaica,  by  the  Attorney- 
General  Northey.  147 

On  the  Queen's  right  of  quit-rents,  in  New  York,  by  the  same 
lawyer.  1 49 

Mr.  Fane's  opinion  on  the  King's  right  to  treasure-trove,  in  the 
Bahamas.  150 

The  Attorney-General  Northey's  opinion  of  the  Queen's  right  to 
royal  fish,  at  New  York.  150 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  on  the  King's  right  to  the  territory  of  Avalon,  in  New- 
foundland, which  had  been  granted  to  Sir  George  Calvert.  in  1623.  151 

The  opinion  of  the  Attorney.General  Harcourt,  on  the  Queen's 
right  of  escheat,  to  an  estate  in  Jamaica.  153 

The  opinion  of  Mr.  Jackson  on  the  King's  right  to  the  white  pine 
trees  growing  on  the  Kennebeck  River.  155 

The  opinion  of  the  same  counsel  on  the  construction  of  the  8 
Geo.  I.,  for  the  preservation  of  the  white  pine  trees  in  New  Eng- 
land. 157 

Second.     OF  THE  KING'S  POWER  OP  TAXATION. 

The  opinion  of  the  Attorney-General  Northey,  that  the  Queen 
might  direct  to  be  levied  a  tax  on  the  conquered  part  of  St-  Kitt's, 
in  1704.  158 

The  same  lawyer's  opinion,  that  the  Queen  might  legally  take  off 
the  duty  of  five  shillings  per  ton,  on  French  ships,  when  the  Eng- 
lish ships  should  be  exempted  from  paying  the  duty  of  fifty  sols  per 
ton,  in  France.  1 59 


CONTENTS 

Page. 

Mr.  Lamb's  opinion  on  the  appointment  of  Sheriffs  in  New  Jer- 
sey. 161 

Mr.  Fane's  opinion  on  the  King's  power  to  confirm  the  titles  to 
land  in  Connecticut.  163 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  on  the  King's  right  to  make  new  grants  of  land  in  New 
Hampshire.  164 

The  opinion  of  the  Attorney-General  Yorke,  on  the  manner  of 
discussing  objections  to  the  King's  grants.  168 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Talbot,  on  the  question  between  the  King  and  the  Proprietors  of 
the  Northern  Neck,  in  Virginia.  169 

The  opinion  of  the  Attorney  and  Solicitor,  Ryder  and  Strange, 
concerning  the  grants  of  lands  in  Carolina,  before  and  after  the  pur- 
chase, by  the  King,  of  the  Proprietors'  rights.  171 

The  opinion  of  the  Attorney  and  Solicitor  General,  Yorke  and 
Talbot,  on  grants  that  are  void- for  uncertainty.  175 

The  opinions  of  Mr.  Fane,  and  of  the  Attorney  aud  Solicitor-Gen- 
eral, Willes  and  Ryder,  on  the  question  of  patenting  lands,  under 
old  grants  from  the  Proprietaries  of  Carolina,  176 

-   The  opinion  of  the  same  lawyers,  on  the  nullity  of  a  similar  grant 

to  Mr.  Hodgson.  178 

The  opinion  of  Mr.  Fane,  on  the  validity  of  the  grant  of  the  Sec- 
retary's office  in  South  Carolina.  178 

The  opinion  of  the  Attorney- General  Willes,  on  the  right  of  the 
Proprietor  of  Maryland,  to  appoint  to  offices,  under  the  King's 
Charters.  179 

Fourth.     OF  AN  ANOMALOUS  EXCLUSION  OF  THE  KING'S  RIGHT  OF 

GRANTING   A    COLONIAL    OFFICE. 

The  opinion  of  the  Solicitor-General  Montague,  on  the  exclusive 
right  of  the  Governors,  to  appoint  naval  officers.  181 

Fifth.     OF  THE   KING'S  GENERAL  JURISDICTION  OVER  HIS  TERRI- 
TORIES ABROAD. 

The  opinion  of  the  Attorney  and  Solicitor-General,  Raymond  and 
Yorke,  on  the  King's  power  to  establish  a  Civil  Jurisdiction  at 
Gibraltar. 


CONTENTS  XV 

Page. 
The  opinion  of  the  Attorney-General  Northey,  that  the  Queen 

might  establish  a  Court  of  Equity  in  Massachusetts  Bay.  194 

Mr.  West's  opinion  on  the  King's  right  to  establish  a  new  office 
of  law  at  Barbadoes.  195 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  on  the  King's  right  of  establishing  a  Government  in  Geor- 
gia, upon  the  surrender  of  the  Trustees.  198 

Mr.  Fane's  opinion,  on  the  King's  power  of  calling  an  Assembly, 
in  New  York.  199 

The  opinion  of  Chief-Justice  Morris,  in  New  Jersey,  on  the 
King's  power  of  mercy.  .  200 


III.      HOW    FAR    THE     KING'S    SUBJECTS,  WHO    EMI- 
GRATE,    CARRY  WITH  THEM  THE  LAW  OF  ENGLAND. 

First.     As  TO  THE  COMMON  LAW. 

Mr.  West's  opinion  on  this  subject  in  1720.  206 

The  opinion  of  the  Attorney  and  Solicitor  General,  Pratt  and 
Yorke,  that  the  king's  subjects  carry  with  them  the  common  law, 
wherever  they  may  form  settlements.  206 

Mr.  Fane's  opinion,  how  far  subjects  can  be  detained  in  custody, 
on  a  charge  of  piracy.  207 

Second.     As  TO  THE   EXTENSION  OF  THE  STATUTE  LAW. 

The  Attorney-General  Yorke's   opinion  on  this  subject,  in  1729'  208 

The  opinion  of  the  Attorney  and  Solicitor,  Henley,  and  Yorke, 
that  the  subjects  emigrating,  do  carry  with  them  the  statute  law,  in 
1757.  209 

The  opinion  of  the  advocate,  the  attorney,  and  solicitor,  Hay, 
Yorke,  and  Norton,  on  the  same  subject  in  1762;  210 

The  opinion  of  the  attorney  and  solicitor-general,  De  Grey,  and 
Willcs,  on  the  extension  of  acts  of  parliament  to  the  colonies,  when 
they  are  mentioned,  generally,  as  dominions  of  the  crown,  1767.  211 

The  opinion  of  attorney  and  solicitor-general,  Raymond,  and 
Yorke,  how  far  the  statute  of  monopolies  extends  to  the  colonies.  213 

The  opinion  of  the  attorney-general  Yorke,  in  1727,  how  far 
statutes  extend  to  the  Isle  of  Man.  214 


CONTENTS 

Page. 
The  opinion  of  the   attorney  and  solicitor-general,   Yofke,   and 

Wearg,  on  the  extension  of  the  laws  of  England  to  the  colonies  and 
other  analogous  topics  of   law.  215 

The  opinions  of  Northey,  Ryder,  and  Strange,  on  the  discontin- 
uance of  the  American  act  of  queen  Ann.  232 


OF  THE  COLONIAL  CONSTITUTIONS. 

First*     OF  THE  GOVERNOR. 

See  the  opinion  of  the  Attorney-General  Blenman,  of  Barbadoes, 
in  1729.  233 

The  opinion  of  Mr.  Thomas  Reeve,  on  the  same  subject,  in 
1727-8.  237 

Mr.  West's  opinion,  in  1725,  whether  a  Governor  can  vote  as  a 
Councillor.  238 

Mr.  West's  opinion,  in  1719,  concerning  a  Governor's  power  to 
prorogue  the  assembly,  under  an  adjournment.  239 

The  opinion  of  the  Attorney  and  Solicitor-General,  Trevor,  and 
Hawles,  in  1 700,  on  the  determination  of  a  Governor's  commission.  243 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke,  and 
Talbot,  on  the  effect  of  notice  on  the  validity  of  a  governor's  com- 
mission. 244 

The  opinion  of  Mr.  Thomas  Reeves,  and  Mr.  Lutwyche,  on  the 
continuance  of  the  governor's  commission.  244 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder,  and 
Murray,  on  the  question,  whether  the  great  seal  of  the  province 
should  not  be  affixed  to  every  act  of  government,  that  requires  a 
seal,  in  the  Colony*  246 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder,  and 
Murray,  of  the  Governor's  right  to  prorogue  the  Assembly  to  any 
place  within  his  government.  248 

The  opinion  of  the  Chief  Justice  Morris,  of  New  York,  on  the 
question,  whether  the  change  of  the  Governor  would  dissolve  the 
Assembly.  249" 

The  opinion  of  Mr.  Hamilton,  an  eminent  lawyer  of  Pennsylvania, 
on  the  same  subject.  258 


CONTENTS  XV^ 

Page. 
Mr.  Fane's  opinion  on  the  nature  of  the  bond  to  be  given  by  the 

Governors  of  Proprietary   Governments,  for  observing  the  Acts  of 
Trade.  261 

The  opinion  of  the  Attorney  and  Solicitor  General  Trevor  and 
Hawles  on  the  trial  of  a  Lieutenant  Governor,  and  other  legal 
topics.  262 

Second.     OF  THE  COUNCIL. 

The  opinion  of  the  Attorney  and  Solictor-General,  Murray  and 
Lloyd,  in  1755,  on  the  question  whether  the  Governor  and  Council 
have  the  power  of  making  laws.  263 

The  opinion  of  the  Attorney-General  Pratt,  on  the  several 
powers  of  the  Council  and  Assembly  of  Maryland.  264 

The  opinion  of  the.  Attorney  and  Solicitor-General,  Henley,  and 
Yorke,  how  far  the  proclamation  of  martial  law  suspends  the  functi- 
ons of  the  Council.  268 

Third.     OF  THE  REPRESENTATIVE  ASSEMBLY. 

The  opinion  of  the  Attorney-General  Raymond. on  the  King's 
power  to  grant  the  privilege  of  having  an  Assembly,  and  on  the 
right  given  by  the  King  to  particular  districts,  to  choose  delegates.  269 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  npon  the  issuing  of  writs  for  choosing  new  representatives.  27 1 

The  opinion  of  the  same  lawyers,  on  the  right  of  the  Crown,  to 
enable  particular  towns,  to  send  delegates  to  the  Assembly.  272 

Mr.  Fane's  opinion  on  the  same  point.  273 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  on  the  same  point.  276 

The  opinion  of  the  Attorney  and  Solicitor-General,  Murray  and 
Lloyd,  on  the  privileges  of  the  Jamaica  Assembly.  292 

The  opinion  of  the  same  lawyers,  whether  a  person  chosen  into 
the  Assembly,  had  a  right  to  sit  he  having  been  convicted  of  a  crime 
in  England.  293 

The  opinion  of  the  Attorney  and  Solicitor-General,  Northey,  and 
Harcourt,  how  far  a  representative,  absenting  himself,  may  be  pun- 
ished. 294 
c 


CONTENTS 

Page. 

The  opinion  of  the  Attorney-General  De  Grey,  whether  the  As- 
sembly of  South  Carolina  could  grant  money  to  the  I3U1  of  Rights 
Society.  296 


IV.     SEVERAL  OPINIONS  ON  THE  ACT  OF  THE  MARY- 
LAND ASSEMBLY,  «  FOR   THE  ESTABLISHMENT  OF 
RELIGIOUS  WORSHIP,  ACCORDING  TO  THE 
CHURCH  OF  ENGLAND." 

The  opinion  of  Mr.  Hollyday,  an  eminent  lawyer  of  Maryland, 
on  this  subject.  299 

Sketches  of  an  argument  on  this  subject,  by  Mr.  Daniel  Dulany, 
one  of  the  ablest  lawyers,  which  America  ever  produced,  after  he 
had  retired  from  the  bar.  305 

The  Opinion  on  the  same  subject,  by  Mr.  William  Paca,  an  emi- 
nent lawyer  of  Maryland.  320 


V.  OF  THE  WANT  OF  SOVEREIGNTY,  IN  THE  GOV- 
ERNOR, THE  COUNCIL,  AND  REPRESENTATIVE 
BODY,  WHEN  MET  IN  ASSEMBLY. 

The  opinion  of  the  Attorney  General  Harcourt,  on  the  impropri- 
ety of  an  act  of  recognition  of  Queen  Ann,  by  the  Assembly  of 
Maryland.  332 

The  opinion  of  the  Solicitor  General  Thomson  on  the  limited 
effect  of  an  act  of  naturalisation,  by  an  Assembly.  333 

The  opinion  of  the  Attorney  General  Murray,  on  the  question 
whether  an  Assembly  can  impose  a  duty  on  the  importation  of  con- 
victs into  a  colony.  333 

Mr.  West's  opinion  on  the  question,  when  the  six  months  com- 
menced wherein  the  Crown  might  repeal  the  acts  of  the  Pennsylva- 
nia Assembly.  336 

The  opinion  of  the  Attorney  and  Solicitor-General,  Raymond  and 
Yorke,  relating  to  the  time  when  the  three  years  for  the  King's  ap- 
proval or  repeal  of  the  Massachusetts  acts  commenced.  337 

The  opinion  of  the  Attorney-General  Nor  they  of  the  bad  effects 
of  temporary  acts  of  Assembly  which  in  his  judgment  could  only  be 
remedied  by  an  act  of  parliament.  338 


CONTENTS  XIX 

Page. 
The  opinion  of  the  same  lawyer,   concerning  the  illegality  of  the 

legislative  proceedings  at  New  York,  against  Bayard  and  Hutchins.  340 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Talbot,  on  the  power  of  the  Assembly  of  Connecticut  to  make  laws.  341 

The  opinion  of  Mr.  Lamb  on  an  usurped  Assembly  in  South  Caro- 
lina. 342 

The  opinion  of  Mr.  Fane,  on  the  same  topic.  343 

The  opinion  of  the  Attorney  and  Solicitor- General,  Har court  and 
Montague,  on  similar  topics  of  incompetence.  344 

The  opinion  of  the  Attorney-General  Northey,  that  care  should 
be  taken  for  the  regular  transmission,  in  order  to  the  consideration 
of  the  Queen's  Councils.  346 

The  opinion  of  the  same  lawyer  on  the  Queen's  power  of  repealing 
the  acts  of  the  Maryland  Assembly.  348 

The  opinion  of  the  same  lawyer,  on  the  unfitness  of  an  act  of  the 
Jamaica  Assembly,  as  inconsistent  with  the  Queen's  prerogative.  349 


VI.     OF  THE  VARIOUS    MODIFICATIONS  OF  THE  CON- 
STITUTED  ASSEMBLY'S  ACCUSTOMED  POWERS. 

The  opinion  of  the  Attorney- General  Raymond,  that  an  act  of 
Assembly  has  the  same  effect  in  the  Colony,  as  an  act  of  Parlia- 
ment has  in  the  mother  country.  35 1 

The  opinion  of  the  Attorney  and  Solicitor-General  Murray  and 
Lloyd  on  the  usual  privileges  of  the  Jamaica  Assembly.  352 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke,  and 
Talbot,  on  the  genexal  policy  applicable  to  the  same  Assembly.  353 

The  opinion  of  Mr.  Fane,  on  the  general  policy  of  the  same  As- 
sembly. 356 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Strange,  on  acts  of  North  Carolina,  that  were  not  binding  either  on 
the  Crown,  or  people.  359 

The  opinion  of  Mr.  "West,  on  the  mode  of  granting  money  by 
the  Barbadoes  Assembly  aud  the  means.  360 

Mr.  West's  objections  to  various  acts  of  the  Barbadoes  Assembly, 
shewing  their  unfitness.  364 


XX  CONTENTS 

Page. 
Mr.  Fane's  objections  to  an  act  of  the  same  act,  as  unfit.  369 

The  opinion  of  the  Attorney- General  Rawlin.  Barbadoes,  on  the 
act  of  Assembly  creating  paper  money.  373 

The  objections  of  the  Attorney  General  Northey,  to  the  same  act 
creating  paper  money,  382 

The  objection  of  the  same  lawyer  to  act  of  Barbadoes,  as  un- 
reasonable. 384 

The  report  of  Mr.  West,  in  favor  of  a  Jamaica  act,  upon  general 
principles  of  colonial  policy.  385 

The  Attorney-General,  Northey 's  objection  to  Barbadoes  acts, 
as  unreasonable  and  unjust.  390 

Mr.  West's  objections  to  an  act  of  the  same  Assembly,  for  licen- 
sing lawyers  upon  the  same  principle.  392 

Mr:  West's  objections  to  an  act  of  the  South  Carolina  Assembly, 
incorporating  Charlestown,  upon  a  new  principle.  395 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Wearg,  on  the  uncircumspect  mode  of  continuing  laws  used  by  the 
Jamaica  Assembly.  397 

The  Solicitor-General  Eyre's  objections  to  an  act  of  the  Jamaica 
Assembly,  for  its  unreasonableness.  401 

The  objections  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  to  a  law  of  North  Carolina,  as  being  contrary  to  reason,  in- 
consistent with  the  laws,  and  prejudicial  to  this  kingdom.  402 

Mr.  Fane's  observations  on  the  Virginia  Assembly,  for  relief  of 
the  College  of  William  and  Mary.  403 

The  objections  of  the  Attorney-General  Northey,  on  some  of  the 
Virginia  acts,  in  1701.  405 

The  Solicitior-General  Harcourt's  reports  on  the  acts  of  the  Ber- 
muda Assemblies,  in  1690-91-93-94.  408 

The  same  lawyer's  report  on  the  acts  of  the  same  Assembly, 
1698.  417 

The  same  lawyer's  report  on  the  acts  of  the  same  Assembly,  in 
1704.  420 

Mr.  West's  objections  to  an  act  of  the  same  Assembly,  as  it  im- 
posed a  duty  on  the  importation  of  British  manufactures.  422 


CONTENTS.  XXI 

Page. 
The  objections  of  the  same  lawyer,  to  similar  laws  of  the  same 

Assembly.  423 

Mr.  Lamb's  observations  on  an  act  of  the  Carolina  Assembly,  re- 
lative to  coins.  425 

Mr.  West's  observations  on  the  continuance  of  the  revenue  acts 
of  the  Jamaica  Assembly.  429 

The  observations  of  the  Attorney  and  Solicitor-General,  Ryder 
and  Murray,  on  the  acts  of  the  Jamaica  Assembly,  in  1751.  431 

Mr.  West's  observations  on  an  act  of  the  Virginia  Assembly, 
tending  to  prohibit  the  importation  of  convicts.  436 

The  observations  of  the  same  lawyer,  on  an  act  of  the  same  As- 
sembly, tending  to  prevent  free  black  men  from  voting  at  elections.  439 

The  same  lawyer's  objections  to  an  act  of  the  Pennsylvania  As- 
sembly, establishing  a  paper  credit.  441 

The  observations  of  the  same  lawyer,  on  the  peculiarities,  and  un- 
fitncss,  of  other  acts  of  the  same  Assembly.  442 

Tha  observations  of  the  Solicitor-General,  Thomson,  on  an  act  of 
the  New  Jersey  Assembly,  for  ascertaining  the  seat  of  govern- 
ment. 445 

Mr.  West's  remarks  on  an  act  of  the  same  Assembly,  tending  to 
lesson  the  jurisdiction  of  the  supreme  courts  of  justice.  445 

The  report  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  on  some  singular  acts  of  the  New  Jersey  Assemby.  446 

Mr.  West,s  opinion  on  the  revenue  acts  of  Jamaica,  upon  special 
questions  put  on  them.  "  449 

The  report  of  the  same  lawyer  on  the  Jamaica  act  of  Assembly, 
for  colonizing  the  island.  454 

The  opinion  of  the  Attorney  and  Solicitor-General  Murray  and 
Lloyd,  on  four  acts  of  the  Jamaica  Assembly,  which,  after  hearing 
parties,  they  deemed  of  such  a  nature  as  the  Governor  ought  not, 
according  to  his  instructions  to  have  passed.  456 

The  opinion  of  the  Attorney  and  Solicitor-General  Henley  and 
Yorke,  that  circuit  courts  in  Jamaica  could  not  be  established,  in  the 
proposed,  mode,  but  by  the  legislature  of  the  island,  or  by  an  act  of 
parliament.  458 


XX11  CONTENTS. 

Page. 
The  opinion  of  the   Attorney  and  Solicitor-General   Kyder  and 

Murray,  how  far  an  act  of  Assembly  ought  to  be  repealed  which 
would  endanger  the  rights  of  purchasers  under  it,  when  a  long  ac- 
quiescence has  occurred.  460 


VII.     OF  THE  COLONIAL   JUDICATORIES  AND   THEIR 
PROCEEDINGS:  THEIR   JURISDICTIONS   EMANATE 
FROM  THE  KING,  UNDER  THE  VARIOUS  MODI- 
FICATIONS OF  THE  SEVERAL  ACTS    OF  THE 
ASSEMBLY. 

The  several  remarks  of  the  Lord  Chief  Justice,  Sir  Thomas 
Parker  and  Sir  Peter  King  on  the  draught  of  a  letter  from  the 
Board  of  Trade  to  the  Earl  of  Sunderland,  on  the  judicial  pro- 
ceedings in  Bermudas.  461 

The  opinion  of  the  Attorney-General,  Northey,  on  the  general 
policy  of  the  colonial  courts.  467 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Wearg,  on  the  establishment  of  a  court  of  criminal  jurisdiction  in 
the  Leeward  Islands.  .  '  463 

The  opinion  of  the  Attorney-General  Murray,  on  the  jurisdiction 
of  the  Jamaica  courts.  472 

The  opinion  of  the  Attorney  and  Solicitor,  Ryder  and  Murray, 
on  the  jurisdiction  of  the  Bermuda  courts.  474 

Mr.  Lamb's  opinion  on  the  courts  of  South  Carolina.  476 

On  the  courts  of  chancery,  in  Barbadoes,  by  the  Attorney-Gen- 
eral Northey.  479 

The  opinion  of  Mr.  Jackson,,  on  the  power  of  the  Governors,  as 
Chancellors  over  idiots.  481 

A  second  opinion  of  the  same  lawyer,  on  the  same  subject,  in  a 
letter  to  the  Secretary  of  the  Board.  482 

The  opinion  of  the  Attorney  and  Solicitor,  Ryder  and  Strange, 
on  the  erecting  of  a  court  of  exchequer  in  the  colonies.  484 

The  Attorney-General  Northey's  opinion,  on  an  act  of  the  Bar- 
badoes Assembly  to  dock  the  entail  of  an  estate.  485 

The  opinion  of  the  Solicitor-General  Thomson,  on  the  same  sub- 
ject. 486 


CONTENTS.  xxiii 

Page. 

The  opinion  of  the  Attorney-General  Northey,  on  the  same  sub- 
ject 4  86 

The  opinion  of  the  Solicitor-General  T.  F.  Aland  on  the  same 
subject.  487 

The  opinion  of  the  Attorney  and  Solicitor  General,  Yorke  and 
Talbot,  that  no  fine  levied,  or  recovery  suffered,  [in  England],  of 
lands  lying  in  the  plantations,  can  operate  effectually  unless  the  same 
has  been  so  authorised  by  acts  of  assembly  in  the  colonies.  488 

The  opinion  of  the  Attorney-General  Northey,  on  the  right  of  ap- 
peal from  the  colonial  courts.  488 

The  opinion  of  the  same  lawyer,  on  the  same  topics.  489 

The  opinion  of  the  Attorney  and  Solicitor,  Ryder  and  Murray,  on 
the  commission  granted  to  De  Lancy,  the  Chief-Justice  of  New 
York.  491 

The  opinion  of  the  Attorney-General,  Yorke,  in  1728,  on  the 
King's  right  to  order  a  nolle  prosequi  to  be  entered  on  prosecutions, 
in  Jamaica,  for  the  penalty  of  an  act  of  Assembly.  49 1 

Mr.  Fane^s  opinion  on  act  of  the  New  York  Assembly,  for  pre- 
venting prosecutions  by  information,  as  inconsistent  with  the  King's 
prerogative.  493 

The  opinion  of  the  Attorney  and  Solicitor  General3  Yorke  and 
Talbot,  on  the  same  subject.  496 

The  opinion  of  the  Attorney-General  Northey,  concerning  the 
proceedings  in  the  courts  of  New  York,  on  an  escheat,  and  an  ap- 
peal therefrom.  497 

The  opinion  of  the  Attorney- General  Northey,  on  the  evidence 
of  free  negroes.  497 

» 

VIII.     OF  THE  ADMIRALTY  JURISDICTION. 

The  opinion  of  the  Attorney  General  Northey.  499 

The  opinion  of  of  the  same  lawyer,  on  a  similar  subject,  in  1703.  502 
The  opinion  of  the  Advocate-General,  Sir  John  Cooke,  on  the 
same  jurisdiction.  504 

Mr.  Fane's  opinion  on  the  Admiralty  Jurisdiction,  in  the  Baha- 
mas. 507 


XXIV  CONTENTS. 

Page. 
The  Attorney-General  Northey's  observations  on  some  acts  of  the 

Barbadoes  Assembly,  as  inconsistent  with  the  Admiralty  Jurisdic- 
tion. 507 

Mr.  West  s  opinion  on  the  Admiralty  Jurisdiction,  in  the  plan- 
tations. 510 

Mr.  Strahan's  opinion,  on  the  power  of  collecting  admiralty  dues, 
in  Bermuda.  522 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
"Wearg,  on  the  trial  for  a  murder  committed  at  sea.  523 

The  opinion  of  the  Advocate,  Attorney,  and  Solicitor-General,  in 
1716,  on  the  same  point.  525 

The  opinion  of  the  Attorney  and  Solicitor-General  of  Barbadoes, 
Chilton,  and  Rawlin,  on  the  trial  of  pirates  there.  527 

The  opinion  of  the  Attorney  and  Solicitor-General,  Northey  and 
Thompson,  on  the  pardon  of  pirates,  in  the  colonies.  529 

The  opinion  of  the  Attorney-General  Northey,  on  appeals  from 
the  admiralty  courts,  in  the  colonies.  531 

The  opinion  of  the  Advocate-General,  Sir  Nathaniel  Lloyd,  on 
the  same  subject.  532 

The  Advocate-General,  Sir  John  Cooke's  opinion,  on  the  seizure 
of  a  Spanish  brigantine,  on  the  high  sea,  by  an  uncommissioned  ves- 
sel. 533 

ON  THE  NATIONAL  FISHERIES. 

The  opinion  of  the  Attorney  General,  Raymond,  on  the  heads  of  a 
patent  for  carrying  on  the  fishery,  in  1721.  533 

Mr.  Fane's  opinion  on  the  duties  on  whale  fins.  535 

The  Attorney.General  Yorke's  opinion,  on  the^owerof  the  justi- 
ces of  the  peace  in  Newfoundland.  536 

The  same  lawyer's  opinion  on  the  powers  of  the  several  officers 
at  Newfoundland.  538 

The  opinion  of  the  Attorney-General,  Ryder,  on  the  King's  pow- 
er to  erect  courts  of  justice  at  Newfoundland.  541 

The  opinion  of  the  Attorney-General,  Ryder,  that  the  King 
could  not  give  power  to  establish  a  criminal  court  at  Newfoundland, 
but  under  the  great  seal.  542 


CONTENTS.  XXV 

Page. 
The  opinion  of  the  same  lawyer,  in  pursuance  of  the  former,  that 

the  King  may  instruct  his  governor  of  Newfoundland,  to  cause  to  be 
executed  such  persons  as  might  be  convicted  of  capital  crimes,  ex- 
cept treason.  543 

The  opinion  of  the  Advocate,  Attorney,  and  Solicitor- General, 
Hay,  Norton  and  De  Grey,  how  far  the  King's  power  was  limited 
at  Newfoundland,  by  the  statute  of  King  William.  545 

The  opinion  of  the  Attorney  and  Solicitor- General,  Sawyer  and 
Finch,  on  the  Eastland  and  Greenland  Companies.  546 


ON  COMMERCE. 

The  opinion  of  the  Solicitor-General  Thompson,  on  the  King's 
prerogative  of  prohibiting  his  subjects  from  going  abroad.  548 

Mr.  West's  opinion  upon  establishing  British  manufactures  in 
France.  548 

The  opinion  of  the  Attorney-General  Macdonald,  how  far  the 
King  may  restrain  his  subjects  from  going  abroad.  554 

The  opinion  of  the  Attorney-General  Yorke.  relating  to  English 
subjects  being  engaged  in  the  East  India  Company  of  Sweden.  557 

Mr.  Fane's  opinion  as  to  the  seizing  any  machinery,  which  were 
designed  to  be  exported,  and  which  were  used  in  the  English  man- 
ufactures. 560 

The  report  of  the  whole  judges  upon  the  memorial  of  the  African 
Company,  touching  the  assiento,  in  1689.  561 

The  opinion  of  the  Attorney  and  Solicitor-General,  Treby  and 
Somers,  on  the  Spanish  trade  in  the  West  Indies.  562 

The  opinion  of  the  Attorney  and  Solicitor-General,  Trevor  and 
Hawles,  on  carrying  logwood  to  Venice,  whether  legal.  563 

Report  of  the  Attorney-General,  Northey,  on  preserving  the 
rights  of  British  built  ships.  564 

The  opinion  of  the  Solicitor-General  Thomson,  on  Spanish  ships 
trading  to  the  British  islands.  566 

Mr.  West's  opinion  on  the  same  subject.  567 

The  opinion  of  the  Attorney  General  Northey,  on  the  importation 
of  naval  stores  from  Holland.  567 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Wearg,  on  the  same  topics.  569 


XXVI  CONTENTS. 

. 
The  opinion  of  the  Solicitor  General  Montague,  on  Irish  ships 

carrying  barley  from  Rochelle  to  Lisbon,  in  1708.  570 

Mr.  Fane's  opinion  on  the  carriage  of  Canary  wines  directly  to 
the  British  plantations.  572 

The  opinion  of  the  Solicitor-General  Eyre,  on  granting  passes  to 
ships,  contrary  to  the  act  of  navigation.  573 

Mr.  Fane's  opinion  on  the  King's  seizing  vessels,  trading  against 
law,  in  the  British  Islands.  574 

The  opinion  of  the  Attorney-General,  Yorke,  on  the  commence- 
ment of  duties  upon  importation.  576 

The  opinion  of  the  Attorney  and  Solicitor-General,  Kemp  and 
Smith,  at  New  York,  on  the  distribution  of  forfeitures,  under  the 
acts  of  trade.  576 

The  opinion  of  the  Attorney-General,  Levinz,  on  the  importation 
af  painted  stoneware.  579 

The  opinion  of  Sir  William  Jones,  Sir  F.  Winnington,  and  Mr. 
J.  King,  in  1 676,  on  the  statute  2 1  st  James,  of  monopolies,  how  far 
an  action  would  lie,  in  the  Barbadoes  courts,  for  seizing  goods  of 
the  African  Company.  580 

The  opinion  of  the  Attorney-General,  Sawyer,  in  1681,  concern- 
ing interlopers.  581 

The  opinion  of  the  Attorney  and  Solicitor-General,  Harcourt  and 
Montague,  on  the  changes  effected,  by  the  union,  in  trade.  582 

The  opinion  of  the  Solicitor-General,  on  the  American  act  estab- 
lishing the  case  of  prize,  during  the  war  of  Queen  Anne.  585 

The  opinion  of  the  Solicitor-General,  Thomson,  relating  to  a  duty 
laid,  in  Carolina,  upon  British  commodities.  686 

The  same  lawyer's  opinion  on  choosing  a  treasurer  of  the  factory 
at  Lisbon.  £87 

Tho  opinion  of  the  Attorney  General,  Ryder,  upon  the  case  of  dis- 
tressed English  seamen  at  Cadiz.  588 

Mr.  Fane's  opinion,  on  the  privileges  of  the  Russia  company,  car- 
rying on  a  trade  to  Armenia.  590 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Strange,  on  the  act  of  Georgia,  about  trade  with  the  Indians.  59 1 


CONTENTS.  XXV11 

.  Page. 

Mr.  West's  opinion  on  some  acts  of  South  Carolina  for  regulating 
the  trade  with  the  Indians.  592 

Mr.  West's  opinion,  relating  to  Custom  House  officers  heing  con- 
cerned .in  trade  and  shipping.  599 

The  report  to  the  King,  of  the  Attorney  and  Solicitor-General, 
Northey  and  Thompson,  on  a  proposed  charter  to  a  corporate  body, 
for  insuring  ships.  599 

The  opinion  of  the  Attorney- General,  Levinz,  on  the  King's  pow- 
er to  grant  a  patent  for  making  black  pepper  white.  609 

The  Attorney-Geneaal  Northey's  opinion  on  foreign  coins.  610 


OF  THE  LAW  OF  NATIONS. 

The  opinion  of  Sir  Leoline  Jenkins,  on  Captain  Cook's  case.  611 

The  opinion  of  Doctors  Exton  and  Lloyd,  how  breakers  of  treat- 
ies are  to  be  punished  in  England.  616 

The  opinion  of  the  same  civilians,  on  the  offence  of  accepting  com- 
missions to  cruize  against  the  King's  allies.  617 

The  opinion  of  the  Advocate-General,  Cooke,  on  making  reprisals 
upon  Portugal,  in  1709.  618 

The  opinion  of  the  Attorney  and  Solicitor-General,  Northey  and 
Raymond,  upon  the  petition  of  several  merchants,  whose  ships  had 
been  taken  by  the  Danes.  619 

The  report  of  several  civilians  on  the  seizure  of  British  vessels, 
by  the  Spaniards,  in  the  West  Indies.  620 

The  Advocate-General.  Doctor  Simpson's  opinion,  on  the  project 
of  a  treaty  of  commerce  with  Prussia.  62 1 

The  Advocate  General,  Dr.  Paul,  on  the  merchants  of  Minorca 
trading  with  Algiers.  623 

The  opinion  of  the  Advocate,  Attorney,  and  Solicitor-General, 
Paul,  Ryder,  and  Murray,  how  far  salvage  was  due  on  a  Spanish 
ship  and  cargo,  that  had  been  stranded  in  North  Carolina.  625 

The  opinion  of  the  Attorney  and  Solicitor-General,  York,  and 
Talbot,  on  the  duration  of  the  treaty  of  neutrality,  in  1686.  625 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder,  and 
Murray,  on  the  same  subject.  628 


XXV111  CONTENTS. 

Page. 
The  opinion  of  the  Attorney  and  Solicitor,  Norton,  and  De  Grey, 

on  the  same  subject.  628 

The  opinion  of  the  Advocate-General,  Sir  James  Marriott,  on 
the  same  subject.  629 

The  opinion  of  the  Attorney-General  Pratt,  on  the  question 
whether  Guadaloupe  became,  in  1759,  a  British  Island.  639 

The  opinion  of  the  Solicitor- General  Yorke,  on  the  same  legal 
topics.  641 

The  opinion  of  the  Attorney  and  Solicitor-General,  Trevor  and 
Hawles,  how  far  Scotchmen  were  aliens,  and  how  a  Lieutenant- 
Governor  could  be  tried  for  misdemeanor.  643 

The  opinion  of  the  Attorney-General  Northey,  on  the  questions 
of  alienage,  and  trading  with  her  Majesty's  enemies.  645 

The  opinion  of  the  Attorney-General  Norton,  whether  the  French 
and  Spaniards  who  remained  in  the  ceded  countries  after  the  peace 
of  1763,  were  aliens  or  subjects.  -  646 

Of  the  legal  effects,  resulting  from  the  acknowledged  independ- 
ence of  the  United  States,  by  Geo.  Chalmers.  648 

The  opinion  of  Sir  Lloyd  Kenyon,  in  1783,  on  the  question, 
whether  the  goods  imported  from  the  United  States  must  pay  alien 
duties,  and  are  subject  to  the  regulations  of  the  acts  of  navigation.  688 

The  opinion  of  Sir  William  Wynne,  in  which  the  Attorney,  and 
Solicitor-General,  Arden  and  Macdonald,  concurred  on  the  state  of 
American  ships,  after  the  independence  of  the  United  States.  690 

The  opinion  of  the  Attorney  General,  Arden,  in  1788,  on  the 
American  trade.  691 

Discussions  on  the  question.  "  whether  inhabitants  of  the  United 
States,  born  there  before  the  independence,  are,  on  coming  to  this 
kingdom,  to  be  considered  as  natural-born  subjects  ?"  By  a  Bar- 
rister. 692 

Surinam, — discourse  of,  by  Mr.  J.  De  Witt.  744 


PREFACE. 


MANY  years  of  agitation  and  revolution  have  elapsed, 
since  it  occurred  to  me,  that  the  commentaries  on  the 
Laws  of  England  were  barren  on  such  legal  topics  as 
relate  to 'our  Colonies,  Fisheries  and  Commerce,  The 
commentator  was,  probably,  unable  to  obtain  materials  ; 
as  the  appeals  from  our  foreign  dominions  lay  to  the 
King  in  his  Council,  and  not  to  the  King  in  his  Bench. 
There  have  been  scarcely  any  reports  of  cases,  which 
were  decided  on  such  appeals,  and  were  accessible  to 
research  ;  but,  if  such  appeals  had  lain  to  the  King 
in  his  Bench,  then  there  would  have  been  many  re- 
ports laid  before  the  public,  whence  the  commentator 
on  the  laws  of  England  might  have  drawn,  with  an 
inquisitive  spirit  and  a  liberal  hand. 

Such  were  my  convictions,  while  I  was  digging 
through  the  books  of  the  BOARD  OF  TRADE,  and  other 
depositories  for  the  materials  of  my  Political  Annals 
of  the  Revolted  Colonies,  which  I  offered  to  the  public 

in  1780  ;  and  I  was  thus  induced  to  take  copies  of  such 
2 


2  PREFACE. 

law  opinions  as  appeared  in  the  course  of  my  researches. 
Those  copies  swelled,  during  my  progress,  to  a  bundle  ; 
and  it  seemed  to  me,  that  if  they  were  digested  under 
heads,  they  might  somewhat  supply  the  juridical  de- 
fects, which  have  been  already  intimated,  rather  than 
shown. 

It  became,  at  length,  known,  that  I  had  made  such 
collections  of  law  opinions  ;  and  professional  gentlemen, 
setting  out  to  the  west  and  to  the  east,  to  execute  va- 
rious offices  in  the  Judicial  Departments,  desired  to  de- 
rive some  rays  of  knowledge  from  the  deliberate  opin- 
•  ions  of  their  elders,  who  had  risen  to  eminence,  as  much 
by  their  integrity  as  their  talents. 

Such  a  limited  use  of  such  opinions,  was  said  to  be 
penurious  ;  and  I  was  urged  to  send  my  collections 
to  the  press,  as  the  properest  mode  of  making  such 
lore  useful  to  the  many  as  well  as  to  the  few ; 
it  was,  indeed,  apparent,  that  such  documents,  lying 
separated  in  different  depositories,  and  obscured  by 
meaner  matters,  were  of  very  little  value,  and  of 
less  instruction  to  the  Governors,  as  they  had  al- 
ways been  to  the  governed :  the  very  Departments 
of  State,  which  possessed  such  unknown  treasures, 
could  neither  be  much  wiser  for  their  unconscious 
possession,  nor  in  any  manner  regulated  in  their  prac- 
tice by  unknown  precedents  :  "  Idem  e-st  non  esse  et 
non  apparere"  was  a  maxim  very  applicable  to  the 
statesmen  who  filled  those  departments,  and  could  not 
pursue  any  settled  policy,  by  those  beacons  which  had 


PREFACE.  3 

lighted  their  predecessors  on  their  official  course. 
Owing  to  all  those  considerations,  I  have  been  inducedj 
at  the  end  of  many  years,  to  give  publicity  to  those 
juridical  opinions,  in  the  hope  of  doing  some  good  by 
their  publication,  while  no  object  of  any  use  can  be 
gained  by  their  concealment.  Those  opinions  will  do 
honor  to  the  lawyers  who  gave  them,  not  only  as  they 
display  a  perfect  knowledge  of  the  several  subjects,  but 
evince  a  deliberation  and  candor,  which  are  equal  to 
their  skill.  Those  opinions  were  often  given,  after 
seeing  agents  and  hearing  counsel,  and  sometimes  de- 
livered with  many  qualifications,  when  the  cases  were 
either  imperfectly  stated,  or  the  facts  uncircumstan- 
tially  understood.  On  perusing  the  following  opinions, 
the  more  judicious  reader  will  be  apt  to  cry  out :  No 
country  enjoys  such  a  college  of  civilians,  as  the  Pre- 
rogative Court  supplies — neither  Greece  nor  Rome,  in 
their  best  days,  produced  such  municipal  lawyers  as 
have  illuminated  this  nation  by  their  learning  ;  ani- 
mated the-  people  by  their  eloquence ;  and  dignified 
their  profession  by  their  probity. 

It  has  been  my  endeavor  to  arrange  the  following 
opinions  according  to  my  limited  notions  of  a  just 
analogy;  and,  when  it  is  recollected,  that  «o  great  a 
jurist  as  Sir  Matthew  Hale,  acknowledged  his  ina- 
bility to  reduce  his  analysis  of  the  law  to  an  exact 
logical  method,  censoriousness  may,  perhaps,  think  with 
less  severity  of  my  unskillf illness. 


4  PREFACE. 

This  multifarious   subject  may  be  properly  digested 
under  the  following  heads : 

First,  The  King's  Prerogative  abroad : 

I.  Of  his  Ecclesiastical  Authority ; 

II.  Of  his  Civil  Authority.     This  last  may  be  again 
subdivided  into   four  divisions  :      (1.)  The  King's 
rights ;    (2.)  The    King's   power  of  taxation   over 
conquests  ;(3.)  the  King's  Grants ;   (4.)  An  anom- 
alous exclusion  of  the  King's  Prerogative,  in  the 
appointment  to  one   office. 

Secondly,  Of  the  King's  General  Jurisdiction  abroad. 

Thirdly,  How  far  the  King's  subjects,  who  emigrate, 
carry  with  them  the  English  law ; 

I.  The  Common  Law ; 

II.  The  Statute  Law, 

Fourthly,  Of  the  Colonial  Constitutions.    This  head 
may  be  subdivided  into  six  divisions  : 

I.  Of  the  Governor; 

II.  Of  the  King's  Council ; 

III.  Of  the  Representative  Assembly ; 

IV.  Of  the  want  of  sovereignty  in  the  Colonial  Leg- 
islatures ; 

V.  Of  the  various  modifications  which  the  Constituted 
Assembly  admits ; 

VI.  Of  the  Colonial  Judicatures. 
Fifthly,  Of  the  Admiralty  Jurisdictions. 
Sixthly,  Of  the  National  Fisheries. 


PREFACE.  5 

Seventhly ',  Of  Commerce :  This  head  may  be  subdi- 
vided into  four  divisions : 

I.  Manufactures  set  up  abroad ; 

II.  The  Acts  of  Navigation  ; 

III.  Miscellaneous  matters  of  Trade  : 

IV.  Of  Coins. 

EigWily,  Of  the  Law  of  Nations.  This  head  may  be 
subdivided  into  two  divisions : 

I.  Treaties  ; 

II.  The  legal   effects   arising   from   the  direct  inde- 
pendence of  the  United  States. 

•  Superior  to  all  those  Colonial  Jurisdictions  was  the 
King  in  his  Council,  at  Whitehall.  During  the  first 
age  of  the  Colonies,  from  1606  to  1640,  the  whole 
superintendence  of  the  King  was  exercised,  both  execu- 
tively and  legislatively,  by  the  Privy  Council. 

An  age  of  innovation  and  reform  now  began ;  and 
the  jurisdiction  of  the  Privy  Council,  within  the 
realm,  as  to  persons  and  property,  was  regulated  by 
Parliament.* 

But,  whatever  may  have  been  taken  away  at  the 
sad  commencement  of  the  civil*  wars,  was  assumed  by 
the  Parliament,  which  exerted  every  act  of  sovereign- 
ty over  the  colonies t/  When  the  monarchy  was  re- 
established, in  1680,  the  King's  ancient  jurisdiction 


*  16  Ch.  I,  ch.   10;     1  Blacks.  Com.  230,  231. 

t  See  the  several  acts  in  Scobbell,  which  are  the  prototypes  of  the 
acts  of  navigation. 


O  PREFACE. 

over  the  trans-atlantic  colonies  was  restored,  with  the 
King's  government.  But  the  plantations  had  now,  by 
many  accessions,  grown  into  bulk :  and  the  King's 
superintendence  became  still  more  necessary  and  fre- 
quent, for  preserving  the  sovereignty  of  the  Crown, 
and  the  subordination  of  the  colonies.  A  Council  of 
Trade  and  Plantations  was  now  established  ;  consisting 
of  an  indefinite  number  of  respectable  persons,  who 
were  not,  however,  members  of  the  Privy  Council.  Of 
that  Council  of  Trade  was  Sir  Josiah  Child,  who  was 
then  a  brewer  in  Southwark  ;  and  is  still  remembered 
for  the  solid  sense  of  his  commercial  treatises.  This 
Council  was  abolished  on  the  12th  of  March,  1574-5,' 
when  the  whole  affairs  of  Trade  and  Colonies  were 
placed,  by  the  King's  declaration,  in  Council,  under 
the  jurisdiction  of  a  Committee  of  the  Privy  Council,, 
which,  during  the  various  changes  of  varying  times, 
still  retained  its  colonial  authority  of  ancient  times.. 

The  distresses,  both  of  our  commerce  and  our  colo-- 
nies,  during  the  revolution  war,  created  discontent : 
and  this  discontent  and  those  distresses  produced,  out- 
cries and  complaints,  which  predisposed  the  nation  for 
some  change :  such,  then,  was  the  origin  of  the 
BOARD  OF  TRADE  AND  PLANTATIONS,  during  the  year 
1696.  By  a  commission,  under  the  Great  Seal,,  a  no- 
bleman for  President  and  several  gentlemen,  who  were 
eminent  for  their  knowledge  of  commerce  and  of  col-- 
onies,  were  appointed,  with  various  powers,  for  super* 


PREFACE.  7 

intending  and  promoting  both.*  During  many  years, 
their  superintendence  over  the  plantations  was  vigilant 
and  incessant ;  but  what  could  such  a  board  do  for 
promoting  Commerce  or  Fisheries,  more  than  removing 
obstructions  out  of  the  way,  by  their  advice  and  aid, 
it  is  not  easy  to  tell.  They  were  either  useful  or  use-; 
lessj  like  other  establishments,  according  to  the  use 
that  was  made  of  them.  If  a  conceited,  meddling, 
forward  person  happened  to  bear  sway  as  Secretary 
of  State,  he  deprived  the  Board  of  its  jurisdiction  and 
usefulness ;  if  a  person  of  consequence  and  talents, 
happened  to  preside  at  such  a  Board,  it  became  exceed* 
ingly  advantageous  to  the  State,  by  investigating  colo^ 
nial  titles  and  complaints,  by  assisting  negotiators  with 
their  informations  and  advices,  in  addition  to  the 

*  The  plan  of  the  Board  of  Trade,  during  the  reigns  of  King  Wil- 
liam and  Queen  Anne,  seems  to  have  been,  to  appoint  two  noblemen 
and  eight  commoners,  as  Commissioners  for  executing  the  two  great 
objects  of  the  commission — the  promoting  of  trade  and  the  superin- 
tending of  the  plantations.  The  members  of  the  first  Board  were : 
John,  Earl  of  Bridgewater ;  Ford,  Earl  of  Tankerville ;  Sir  Philip 
Meadows,  who  wrote  "  Observations  concerning  the  Sovereignty  of  the 
Seas;  William  Blaithwayt,  who  had  been  Secretary  of  the  Old 
Council  of  Trade  and  Plantations,  and  died  Auditor  of  colonial  rev- 
enue; John  Palexfen,  the  Chief  Justice's  brother,  and  a  merchant 
in  the  city,  who  published  a  tract  on  Trade;  the  well  known  John 
Locke,  who  wrote  on  the  coinage;  Abraham  Hill,  whose  collections 
on  trade  and  colonies  are  in  the  British  Museum ;  and  John  Me- 
thuen,  who,  from  1690  represented  the  Devizes  in  Parliament:  he 
was  sent  to  Portugal,  as  Ambassador  Extraordinary,  for  the  special 
purpose  of  making  the  commercial  treaty,  dated  the  27th  of  Decem- 
ber, 1703:  he  died  about  the  year  1705.  The  Board  of  Trade  wag 
a  proper  nursery  of  such '  ministers. 


8  PREFACE. 

usual  occupations  of  such  a  department.  The  first  com- 
mission specially  recommended  to  the  attention  of  the 
Board,  one  of  the  most  difficult  of  subjects — the  poor, 
the  poor-rates,  the  poor  laws  ;  a  subject  of  such  compli- 
cation, as  baffled  the  united  labors  of  the  ten  Commis- 
sioners, and  seems  to  defy  the  wisdom  of  Parliament. 
It  was  probably  intended,  that  the  Board  of  Trade 
should  have  power  to  administer  an  oath :  and  the 
Solicitor-General,  Thompson,  gave  his  opinion  to  this 
effect : 

SIR  :  In  obedience  to  the  commands  of  the  Lords 
Commissioners  for  Trade  and  Plantations,  signified  by 
yours  of  the  5th  instant,  I  am  of  opinion,  that  the 
clause  in  the  commission,  which  is  under  the  Great 
Seal,  does  empower  the  Commissioners,  or  any  three 
of  them,  to  administer  an  oath  to  witnesses,  who  shall 
come  before  them  to  be  examined,  touching  any  mat- 
ter mentioned  in  the  commission,  to  which  that  power 
does  relate.  I  am,  &c., 

Wm.  Popple,  Esq,  WM.  THOMPSON* 

February  6,  1719-20. 

By  a  special  clause  of  the  first  commission,  the 
Board  was  empowered  to  call  for  the  advice  and  aid 
of  the  Attorney  and  Solicitor-General.*  The  following 
opinions  will  show,  that  soon  after  the  revolution,  the 
Ministry  called  upon  the  Lord  Chief  Justice  Holt,  for 

*  The  law  officers  were  each  allowed  a  standing  fee  ef  &  hundred 
guineas,  with  ten  guineas  to  each  of  their  dorks, 


PREFACE. 


his  advice ;  but  he  does  not  appear,  when  acting 
in  this  character  of  adviser,  in  his  best  light.  The 
whole  Judges  were  called  upon,  soon  after  the  same 
epoch,  to  give  their  advice  as  to  the  legality  of  the 
as-siento  trade-,  though  it  must  have  been  the  magni- 
tude of  the  object,  more  than  its  difficulty,  which  re- 
quired such  mighty  knowledge  as  the  lights  of  West- 
minster Hall  enjoyed,  to  see  that  such  a  trade  with 
the  Spanish  colonies,  in  Spanish  ships,  was  inconsist- 
ent with  the  acts  of  navigation. 

When  treaties  of  commerce  were  in  contemplation, 
during  the  year  1709,  the  Board  of  Trade  was  em- 
powered to  call  in  the  aid  of  -the  King's  Advocate- 
General;  The  following  opinions  show  several  instances 
of  the  joint  advice  of  the  Advocate,  the  Attorney  and 
Solicitor-General,  which  was  asked  and  received,  by 
the  King's  ministers  :  what  other  country  can  boast 
of  Jurists,  with  such  extent  of  knowledge,  and  reach 
of  thought,  as  such  joint  advice  exhibits ! 

Soon  after  the  accession  of  George  I.  the  acts  of 
the  Colonial  Assemblies,  which  were  to  be  reviewed, 
became  extremely  voluminous  ;  the  standing  fee  of  a 
hundred  guineas  had  ceased  to  be  any  object  to  the  At- 
torney and  Solicitor-General :  and  it  became  apparent, 
that  advice  was  at  length  asked  on  particular  business 
of  such  magnitude,  as  a  fee  of  an  hundred  guineas  was 
quite  unequal  to  the  affairs  and  income  of  the  law- 
officers  of  the  crown,  from  other  sources.  Thus,  the 
progress  of  business  led  on  to  the  special  appointment 


10  PREFACE. 

of  one  of  the  King's  learned  counsel,  to  attend  to  the 
law  affairs  of  this  Colonial  Department. 

The  first  counsel,  who  was  thus  assigned  to  the 
Board  of  Trade,  in  April  1718,  was  Richard  West, 
who  had  distinguished  himself,  by  publishing  "  An  In- 
quiry into  the  manner  of  creating  Peers ;"  and  repre- 
sented, in  Parliament,  successively,  Grampound  and 
Bodmin.  He  was  allowed  a  special  salary  of  three 
hundred  pounds  a  year.  The  Advocate,  the  Attorney 
and  Solicitor-General,  continued  to  be  consulted  on 
particular  occasions,  and  were  paid  the  accustomed  fees 
for  such  applications.  In  June  1725,  Mr.  West  was 
appointed  Chancellor  of  Ireland :  but  he  unhappily 
died  at  Dublin,  in  December  1726  ;  leaving  a  son,  who 
distinguished  himself  as  the  correspondent  and  friend 
of  Gray,  the  poet. 

Francis  Fane,  of  the  Inner  Temple,  a  relation  of 
the  Earl  of  Westmorland,  the  President  of  the  Board 
of  Trade,  was  immediately  appointed,  as  the  successor 
of  Mr.  West,  in  June  1725.  He  continued  to  represent 
in  Parliament,  either  Taunton  or  Petersfield;  and  to 
act  as  learned  counsel  to  this  establishment,  which 
required  so  much  legal  assistance,  till  November,  1746, 
when  he  was  appointed  a  member  of  the  Board. 

After  this  long  service,  he  was  immediately  suc- 
ceeded by  Matthew  Lamb,  the  representative  in  Par- 
liament for  Stockbridge.  He  was  create'd  a  Baronet  in 
January  1775,  and  he  continued  a  representative  in 
Parliament  for  Peterborough,  as  well  as  the  learned 


PREFACE.  11 

counsel  to  the  Board  of  Trade,  till  his  decease,  on  the 
6th  of  November,  1768 :  his  son,  Sir  Peniston,  was 
created  a  peer  of  Ireland,  011  the  2d  of  May,  1770, 
It  is  unnecessary  to  tell  who  were  the  law  officers  of 
the  Crown  that  gave  special  opinions  to  the  Board, 
while  Mr,  Fane  and  Sir  Matthew  Lamb  acted  as  law 
counsellors  to  that  establishment :  the  world  has  sel- 
dom seen  such  a  succession  of  Jurists,  whether  we  re- 
gard their  knowledge,  their  temper  or  their  integrity. 

At  a  very  critical  moment  of  colonial  affairs,  this 
important  office  of  law  adviser  to  the  Board  of  Trade 
remained  undisposed  of  during  several  years  of  great 
colonial  perturbation :  at  length>  on  the  30th  of  April, 
1770,  Richard  Jackson,  one  of  the  King's  learned  counsel, 
was  appointed  to  this  trust,  which  this  accomplished 
lawyer  very  sufficiently  discharged  till  the  abolition 
of  the  Board,  at  the  same  epoch  which  saw  thirteen 
revolted  Colonies  acknowledged  to  be  sovereign  States, 
By  the  same  statesman,  who  advised  that  acknowl- 
edgment, Mr.  Jackson  was  appointed  a  Commissioner 
of  the  Treasury,,  though  his  omniscience  could  not 
prevent  the  fall  of  the  minister,  who  mortified  the 
nation  by  his  prejudices,  and  injured  it  by  his  pro- 
jects. Mr.  Jackson  died  on  the  6th  of  May,  1787, 
leaving  a  very  ample  fortune  to  his  two  sisters.  At 
the  time  of  his  decease  he  was  one  of  the  King's 
learned  counsel,  a  member  of  Parliament,  and  a  fellow 
of  the  Royal  and  Antiquary  Societies. 


12  PREFACE. 

The  first  shock  which  the  Board  of  Trade  had  to 
sustain,  was  given  by  the  inconsiderate  hand  of  the 
Earl  of  Shelburne,  when  he  was  appointed  Secretary 
of  State,  on  the  23d  of  May,  1766,  The  correspond- 
ence and  the  patronage  which  the  Board  had  long 
enjoyed,  was  now  resumed,  and  they  were  informed, 
from  authority ,  "  that  the  Commissioners  were,  in  fu- 
ture, to  act  as  a  board  of  advice  and  counsel  upon 
such  points  only  as  should  be  referred  from  the  Privy 
Council  or  Secretary  of  State.'1*  The  authority  of 
Parliament  had  been  recently  shaken  by  the  repeal 
of  the  Stamp  Act,  and  the  Commission  for  plantation 
affairs,  which  had  knowledge  and  experience  an,d  en- 
ergy, was  thus  reduced  to  a  board  of  reference. 

When  the  repeal  before  mentioned  did  not  procure 
acquiescence,  and  the  shock  which  had  been  given 
to  the  Board  did  not  enforce  respect,  very  different 
measures  were  adopted.  A  Secretary  of  State  for  the 
colonies  was  created,  and  in  July,  1768,  the  Board  was 
restored  to  the  authority  and  practice  which  it  en- 
joyed and  used,  "  antecedent  to  the  date  of  the  said 
letter  of  the  2.6th  of  August,  1766."t  The  Co- 
lonial Secretary  was,  thenceforth,  directed  to  be  a 
constituent  member  of  the  Board,  but  the  past  could 
not  be  recalled,  while  little  souls  on  little  shifts  relied. 


*  Lord  Shelburne's  letter  of  the  26th  of  August,  1766. 
t  Lord  Hillsborough's  official  communication,  dated  the  6th  of  July, 
1768. 


PREFACE.  13 

None  of  the  statesmen  of  that  period,  nor  those  of 
of  the  preceding  or  subsequent  times,  had  any  suspi- 
cion that  there  lay  among  the  documents  in  the 
Board  of  Trade  and  paper  office,  the  most  satisfactory 
proofs,  from  the  epoch  of  the  revolution  in  1688, 
throughout  every  reign,  and  during  every  administra- 
tion, of  the  settled  purpose  of  the  revolted  colonies 
to  acquire  direct  independence :  those  shifts  of  policy 
only  strengthened  the  previous  design  which  had  so 
long  been  entertained,  of  acquiring  positive  sovereign- 
ty ;  yet  was  not  such  a  design  believed  by  little  souls, 
even  after  that  long  meditated  event  had  occurred,  by 
the  positive  declaration  of  it  in  1776.  The  subse-. 
quent  struggles  of  inefficient  shifts,  at  whatever  ex-, 
pense  of  many  millions  and  much  bloodshed,  only  led 
on  to  that  avowed  acknowledgment  of  real  sovereign-. 
ty,  which  was  tardily  given  in  1782.  At  the  same 
epoch,  the  statesman  whose  eloquence  and  efforts  had 
so  efficaciously  contributed  to  that  event,  moved  for 
the  law  which  abolished  the  Board  of  Trade.*  Lord 
Shelburne,  as  Secretary  of  State,  again  held  the  omi- 
nous pen  which,  on  the  2d  of  August,  1782,  even 
months  before  the  Act  had  passed,  communicated!  to 
the  several  members  of  the  Commission,,  the  deadly 
tidings,  that  the  King  had  no  further  occasion  f<Mj 
their  commercial  or  colonial  services ;  yet  a  peace  was 
still  to  be  made  with  the  United  States,  with  Erance> 

*  22  Geo.  III.  ch.  82. 


14  PREFACE. 

with  Spain  and  with  Holland.  Lord  Shelburne  lived 
to  hear  in  -Parliament,  that  the  peace  of  1783  was  un- 
satisfactory. 

Acquiescence  in  what  cannot  be  remedied,  is  one 
of  the  great  morals  which  nations  in  their  progress, 
have  to  practice.  After  all  those  events,  domestic  and 
foreign,  it  was  supposed  by  some,  that  the  whole  busi- 
ness of  the  late  Board  of  Trade  had  devolved  upon 
the  Secretary  of  State ;  but  the  Secretary  for  the 
colonies  had  been  abolished  by  the  same  stroke  of  law 
that  had  dissolved,  untimely,  the  Board's  commission ; 
and  the  devolution  exclusively  fell  upon  the  Privy 
Council,  as  the  King's  Standing  Council  from  ancient 
times ;  it  accordingly  acted  for  several  years,,  in  some 
difficult  questions,  while  the  old  trade  and  new  habits 
of  the  United  States  were  to  be  regained  by  meafts  of 
a  committee  of  its  own  members. 

The  Secretary  of  State,  however,  while  some  diffiv 
eulties  still  remained,  appointed  a  law  officer  to  en-*, 
lighten  his  steps,  though  under  the  late  act  of  Par^. 
liament,*  deliberation  and  advice  did  not  belong  to  art 
office  which,  under  that  statute,  was  merely  ministe-- 
rial  for  transmission,  rather  than  for  counsel.  He 
recollected,  perhaps,  that  the  Board  of  Trade  did  en-, 
joy  the  instructive  aid  of  a  learned  person,  but  he  did 
not  know,  probably,  by  .what  authority  and  for  what 
purpose,  such  an  officer  had  been  appointed  by  the 

*  22  Geo.  III.  Ch.  82. 


PREFACE.  lO 

King.       To   his    own   counsel,  the    Colonial  Secretary 
now  referred  the   several   Acts   of  Assembly   as  they 
arrived  from  the  colonies,  before  they  were  referred  to 
the  Privy    Council,   for   examination  and  report  to  the 
King ;    it  is  easy  then,  to  see    that   such  a  reference 
was  made   by  incompetent  authority  to    an   incompe- 
tent  adviser.     The  reference,  therefore,  to  such  a  coun- 
sellor, and  his  report  on  such  acts  of  Assembly  were, 
of  course,  coram  non  judice ;   and  it  was  a  measure  of 
retardation   rather   than  furtherancej  towards  ultimate 
completion    by    the    King's    consent   or    approbation : 
thus,  the  appointment  of  such  a  law  officer,  the  advice 
of  such   an    officer,    and  the  fees  of  such    an    officer^ 
when  demanded  of  private  parties  for  private  acts,  as 
such  a  demand  in  recompense  for  incompetent  advice-, 
thus  coram  non  judice}  must  be  deemed  unofficial  and 
unconstitutional.     The  law,  as  we   learn  from   Sir  Ed- 
ward   Coke,  scowls   on   new   offices,   especially,  where* 
something  is  demanded  for  nothing.      The  Parliament 
scowls  at  every  act  by  which  money  is,  in  any  man- 
ner raised  on  the  subject,  without  some  sort  of  assent^ 
either  virtually   or   directly,  in  Parliament  or  Assem- 
bly,    Every  man,  every  woman  and  every  child  must 
scowl   at  fees   which  are   demanded,   not    for  service, 
but  for  hindrance.       When  Sir  Philip  Yorke,  the  At- 
torney-General, was  consulted    about  a  commission  to 
empower  justices  of  peace  to  raise  money  for  local  pur^ 
poses,  at  Newfoundland,  like  a  great  lawyer  and  good 
man,  he  cried   out,   "  he  hoped  no  commission  would 


16  PREFACE. 

be  given  for  such  a  purpose,  without  some  sort  of  as- 
sent by  those  who  were  to  pay  the  tax." 

At  length  in  August,  1786,  a  committee  of  Privy 
Counsellors,  like  the  analogous  committee  of  1674, 
Was  appointed^  by  the  declaration  of  his  Majesty  in 
his  Councilj  for  the  consideration  of  all  matters  re- 
lating to  trade  and  foreign  plantations,  with  a  Chair- 
man, and  Vice-Chairman  and  suitable  officers.  When 
this  committee  was  appointed,  the  act  of  the  22d  of 
the  same  King*  attached  upon  it,  as  it  had  enacted, 
that  the  business  theretofore  done  by  the  Board  of 
Trade,  should  be  executed  by  a  committee  of  Privy 
Council,  with  all  the  authorities,  powers  and  jurisdic- 
tions, given  and  enjoyed  by  the  said  Commissioners 
for  trade  and  plantations. 

The  authority,  power  and  jurisdiction  thus  given 
by  Parliament;  precluded  all  oth^r  power  in  this  re- 
spect, whether  claimed  by  the  Secretary  of  State  or 
by  others,  other  than  the  mere  transmission  of  the 
colonial  acts  to  the  Privy  Council,  as  the  constitutional 
channel  through  which  the  colonial  acts  must  come" 
before  such  a  committee,  for  the  King's  ultimate  de- 
cision. When  the  Board  of  Trade  was  abolished,  the 
Commissioners  left  behind  them  vast  manuscript  col- 
lections, Vhich  are  of  far  more  value  to  the  King  and 
nation,  than  all  the  money  that  had  been  paid  to 
them,  in  the  nature  of  a  salary,  with  a  penurious  spirit 

*  22  Geo.  III.  Ch.  82.- 


PKEKACE.  17 

and  a  tardy  hand ;  yet,  it  must  be  allowed,  that  the 
value  of  such  collections  must  be  limited,  by  the  use 
which  is  made  of  them  for  the  public  benefit. 

From  those  manuscript  collections  chiefly,  as  I  have 
already   intimated,  the  following  opinions  were    tran- 
scribed,   when   researches    were  made  for  minor   mat- 
ters ;    and   from  them  is  now  published,    for   the  first 
time,  the  opinion  of  the  Attorney    and  Solicitor-Gen- 
eral, Sir  Philip  Yorke  and  Sir  Clement  Wearg,  which 
was   mentioned   with    so    much    approbation   by  Lord 
Mansfield,  when  delivering  the  judgment  of  the  Court 
of     King's    Bench,    in     the     case     of    Campbell    and 
Hall,  when  his   Lordship    considered    this    opinion   as 
authority   which  had   not  been  answered,  though  two 
such     great   names    had   considerable    weight.       Such 
opinions,  when  given  to  the  King,  or  his  Councils,  by 
the  law  officers  of  the  Crown,  who  are  bound  by  their 
duties,  to  give  their   sentiments   and  advice  according 
to  their  skill  and  knowledge,  may  be  deemed  of  little 
less    authority   than  decided  law  ;    and   the    following 
opinions  are  published  with  the  well  meaning  hope  of 
contributing  somewhat  to  the  useful  stock  of  juridical 
knowledge  which  the  profession  and  the  people  enjoy, 
as  the  safest  shield  of  private  rights ;  as  the  noblest 
palladium   of    the  public  good   in   such   an  empire  as 
ours;  w'hose  interest,  and  whose  pride  it  is,  to  be  gov- 
erned by  law. 
4 


SKETCHES 


OF     THE 


EMINENT    LAWYERS, 

WHOSE  OPINIONS  ARE  GIVEN  TO  THE  PUBLIC  IN  THIS  WORK. 


1.  Dr.  Exton,  of  the  Commons.      He  published,  in 
1664,  "  Maritime  Dicoeologie,  or  Sea  Jurisdiction  of  Eng- 
land," folio. 

2.  Dr.  Lloyd,  of  the  Commons  :  flourished  1677. 

3.  Sir  Lionel  Jenkins,  was  born  in  Glamorganshire, 
in  1620  :  and  having  entered  Doctor's  Commons,  rose, 
amidst  vicissitudes  and  revolutions,  through  every  step  of 
his  profession,  to  the  top.  He  was  made  Secretary  of  State 
in  April  1680,  and  a  Privy  Counsellor.     He  resigned  his 
dignified  office  in  April,  1684 ;  and  died  in  1685,  after  a 
life  of  usefulness  and  honor.      He  represented  Oxford 
University  in  several  Parliaments.      His  letters  and  ar- 
guments were  published  by  Wynne,  1724,  in  2  vols.  folio. 

4.  Sir  John  King,  was  elected  Treasurer  of  the  Inner 
Temple,  on  the  30th  of  October,  1675." 

5.  Sir  Francis  Winnington  was  made  Solicitor-Gen- 
eral in  1672  ;    became  Reader  of  the  Middle  Temple  in 
1675  ;  and  Treasurer  of  the  same  society  in  1676. 

6..  $ir  William  Jones>  who  was  Treasurer  of  Gray's 


20  LEVINZ,    SAWYER,    FINCH,    HOLT. 

Inn  in  1671,  was  constituted  Solicitor-General  in  No- 
vember 1673  ;  and  Attorney-General  in  January  1674-5. 

7.  Sir  Ores-well  Levinz,  who  was  Treasurer  of  Gray's 
Inn  in  1679,  succeeded  Sir  W.  Jones  as  Attorney-Gen- 
eral during  tb,e  same  year.     His  "  Reports,"  which  were 
praised  by  Lord  Mansfield,  were  published  in  1702 ;  and 
these  were  soon  followed  by  his  "  Entries."     There  is  a 
gentleness  in  his  opinions,  as  Attorney-General,  which 
(floes  him  high  honor,  daring  an  age.  of  little  scrupulosity. 
He  was  created  Sergeant  on  the  29th  of  November,  1681 . 

8.  Sir  Robert  Sawyer  was  appointed  Attorney-Gen- 
eral on  the  14th  of  February  168.0-1,  and  again,  on  the 
7th  of  February  1684-5.     He  died  in  1692. 

9.  Heneage  Finch  was  appointed  Solicitor  General  in 
January,  1678,   in  the  room  of  Wilmington  ;  his  com- 
mission was  renewed  in  February  16&4  ;  but  he  seems 
to  have  been  superseded  by  Sir  Thomas  Powis,  in  April 
1686.    Heneage  Finch  represented  Oxford  University  in 
Parliament  during  1678,  in  1688,  and  a>s  low  down  as 
1700. 

10.  In  1688-9  the  whole  Judges  of  England. 

11.  Sir  Jolm  Holt  was  born  at  Thame,  in  Oxford- 
shire,   1643  ;    and   was  educated   at   Abington   school, 
where  his  father  was  Recorder  ;  he  proceeded  to  Oriel 
College,   Oxford,  became  a  member   of  Gray's   Inn,  in 
1658,  and  was  chosen  Recorder  of  London  on  the  13th 
of  February    1685-6.      He  was   appointed  the   King's 
Sergeant  on  the  22d  of  April   1686  ;    on  the  17th  of 
April  1689,  he  was  appointed  to  the  high  office  of  Chief 
Justice  of  the  King's  Bench  ;  and  in  March  1709,  he 
finished  his  useful  career,  without  leaving  any  issue  to 
perpetuate  his  name.      His  letter  to  the  Lord-President, 
the  Earl  of  Danby,  advising  the  seizure  of  the  charter 


TREBY,    SOMERS,  WARD.  21 

of  Maryland,  without  office  found,  on  the  ground  of  ne- 
cessity, deducts  something  from  his  character  of  inflexi- 
bility, as  a  Judge. 

12.  Sir  George  Treby  was  appointed  the  Recorder  of 
London,  in   1680  ;  Solicitor-General,  the  4th  of  March 
1688-9;  Attorney-General,  on  the   7th  of  May  1689; 
Chief- Justice  of  the  Common  Pleas,  on  the  30th  of  April 
1692  ;  and  dying  in  1701,  was  succeeded  by  Sir  Thomas 
Trevor  on  the  5th  of  July  1701.. 

13.  Sir  John  Somers  was  born  at  Worcester  in  1652  • 
was  educated  at  Trinity  College,  Oxford,  whence  he  re^ 
moved  to  the  fiddle  Temple ;  he  succeeded  Treby  as 
Solicitor-General  on  the  7th  of  May  1689,  and  as  Attor- 
ney-General on  the  2d  of  May  1692  ;    in  1693  he  was 
appointed  Lord-Keeper  of  the  Great  Seal ;  and  in  1697, 
was  created  Lord   Chancellor,  with  the   title   of  Lord 
Comers.      But  on  the  21st  of  May  1700,  he  was  super- 
seded, when  Sir  Nathan  Wright  was  appointed  Lord- 
Keeper.    Lord  Somers  was,  in  1708,  appointed  President 
of  the  Council,  which  office  he  resigned  in  1710.      He 
$ied  in   1716,  after  surviving  the  powers  of  his  mind. 
He  appears  to  have  been  a  collector  of  tracts  during  aft 
age  when  such  lore  abounded.      His  judgment  on   the 
banker's  case  was  published,  some  years  after  his  de- 
cease.    His  pamphlet,  appealing  to  the  judgment  of  na- 
tions,  concerning   the  rights  of  kings  and  the    privi- 
leges of  the  people,    has   run  through   many  editions, 
as  we  might  easily  expect  from  the  title  and  the  sub- 
ject. 

14.  Sir  Ed/ward  Ward,  the  King*s  Sergeant,  was  ap-. 
pointed  Attorney-General,  as  successor  to  Somers,  on  the 
4th  of  April  169:3.  He  was  made  Chief  Baron  of  the 
Exchequer,  on  the  10th  of  June  169.5,  and  he  died, 


22  TREVOR,  HAWLES,  COMPTON. 

probably,  in  November  1714,  when  Sir  Samuel  Dodd 
succeeded  him. 

15.  Sir  Thomas  Trevor  was  appointed  Solicitor-Gen- 
eral on  the  2d  of  May  1692  ;  and  Attorney-General  on 
the  10th  of  June  1695.     He  was  made  Chief-Justice  of 
the  Common  Pleas  on  the  5th  of  July   1701 ;  he  soon 
after  acquired  the  peerage  ;  and  died,  probably,  in  Octo- 
ber 1714,  when  he  was  succeeded  by  Sir  Peter  King,  as 
Chief-Justice  of  the  Common  Pleas, 

16.  Sir  John  Hawles  was  appointed  Solicitor-General 
on  the  13th  of  July,  1695  ;  and  probably  died  in  1702, 
as  Sir  Simon  Harcourt   succeeded   him   in  that  office, 
on  the  1st  of  June,   1702.      In  1680,  Sir  John  Hawles 
published   his   popular  tracts   on  Englishmen's   rights. 
During  the  same  age  of  agitations,,  he  published  his  re- 
marks on  some  State  trials..    He  also  published,  in  1689, 
(i  reply  to  Sir  Bartholemew  Shower,,  in  his  controversy 
with  Sir  Robert  Atkins  on  Lord   RusselPs   innocence. 
The    State   papers  which  have    since   been   published, 
have  decided  the  points  that  were  then  in  controversy. 

17.  Henry  Cotwpton,.  the  son   of   the   first   Earl   of 
Northampton,  was  born  in  1632,  and  educated  at  Queen's 
College,    Oxford.      He  was  created  Bishop,  of  Oxford, 
1674 ;  and  in  the  subsequent  year,  was  translated  to 
Condon.     He  had  the  honor  to  educate   the   two  pjrin- 
cesses,.  Mary  and  Anne..      He  firmly  opposed  the  illegal 
innovations  of  James  II..  by  defying  the  persecutions  of 
power.     At  the  eve  of  the  revolution,  he  conducted  the 
Princess  Anne  to  Nottingham,  to  prevent  her  being  con- 
veyed to  France.      He  had  the  additional  honor  of  in- 
augurating King  William,  after  defending   the    King's 
title  among  the  peers..      He  died  in  1713,  at  the  age  of 


COOKE,  HEDGES,  NORTHEY,  HARCOURT,  ETC.  23 

81,  with  the  character  of  an  eminent  divine  and  patriot 
statesman. 

18.  Sir  Jolin  Cooke^  an  eminent  civilian,  who  was 
King's  Advocate,  1702, 

18-22.  Sir  Charles  Hedges,  Sir  Nathaniel  Lloyd-, 
Henry  Newton,  Robert  Wood,  Humphrey  Hendman, 
were  all  Doctors  of  the  Civil  Law  and  eminent  civilians 
at  the  accession  of  Queen  Anne.  Sir  Charles  Hedges 
was  the  King's  Advocate  and  Secretary  of  State  ;  Sir 
Nathaniel  Lloyd  was  King's  Advocate  ;  Henry  Newton 
seems  to  have  been  a  Master  in  Chancery,  in  October 
1691,  and  afterwards  King's  Advocate; 

23.  Sir  Edivard  Northey  was  appointed  the   Attor- 
ney-General, on  the  10th  of  July  1701;   was  removed 
on  the  25th  of  April,  1707  ;    was  reappointed,  on  the 
19th  of  October  1710 ;    and   was   superseded  by  Lech-; 
mere,  on   the    14th   of   March,   1717.      In   the  subse- 
quent year,  a  pension  of  one  thousand   five   hundred 
pounds  a  year  was  settled  upon  the  late  Attorney-Gene- 
ral, Northey,      He  died  near  Epsom ,  among  his  rela- 
tions, on  the  16th  of  August  1723 ;  and  was  buried,  by 
his  own  request,  in  Epsom  church-yard,  where  there  is 
a  monument  to  his  memory ;  his  daughter  married  Lord 
Raymond. 

24.  Sir  Simon  Harcourt  was  appointed  Solicitor-Gen- 
eral, on  the  1st  of  June  1702,  and  Attorney^General  on 
the  25th  of  April  1707 ;  he  was  superseded  in  October1 
1708,  and  was  reappointed  on  the  18th  of  September 
1710.      He  was,  on  the  9th  of  October  1710,  appointed 
Keeper  of  the  Great  Seal,   and  in  April  1712j   Lord 
Chancellor,  and  during  the  same  year  was  created  a  peer. 
He  died  on  the  28th  of  July  1727. 

25.  Svr  Thomas  Parker  ?ose  speedily  from  being  an 
Attorney  at  Derby,  by  great  talent  an<l  eloquence,  to 


24  KING,    MONTAGU,  EYRE. 

the  height  of  his  profession.  He  was  created  Sergeant 
in  1705,  when  he  was  also  chosen  into  Parliament. 
Having  distinguished  himself  here,  he  became  distin- 
guished everywhere  else.  He  was  appointed  to  succeed 
Sir  John  Holt,  as  Chief-Justice  of  England,  on  the  16th 
of  March  1710;  He  became  Chancellor  on  the  12th  of 
May  1718;  and  was  created  Earl  of  Macclesfield,  on  the 
5th  of  November  1721.  His  fall  was  as  rapid  as  his 
rise.  He  was  accused,  in  Parliament,  of  some  corrup- 
tion in  the  sale  of  offices  in  Chancery  ;  he  resigned  his 
high  station  on  the  24th  of  January  1724  ;  he  was  found 
guilty  by  his  peers,  and  was  fined  thirty  thousand 
pounds.  He  died  on  the  28th  of  April  1732. 

26.  Sir  Peter  King,  from  very  different  studies,  be- 
came a  student  of  the  Middle  Temple.      He  was  chosen 
Recorder  of  London  in  1708,  and  was  appointed  Chief- 
Justice  of  the  Common  Pleas,  on  the  26th  of  October 
1714:      He  was  made  Lord-Keeper  on  the  1st  of  June 
1725;    and  on  the  27th  of  June  1727,  Lord  Chancellor 
and  Baron  of  Ockhani;     Sis  infirmities  induced  him  to 
resign  this  high  office,  and  ne  died  on  the  22d  of  July 
1734,  aged  65. 

27.  Sir  dames  Montagu   was    appointed   Solicitor- 
General  in  April  1707,   Attorney-General   in   October 
1708,   Queen's  Sergeant   in  October  1714,  and   at   the 
same  time,  Baron  of  the  Exchequer.     In  1718,  he  was 
appointed  one  of  the  Commissioners  for  the  keeping  of 
the  Great  Seal ;    on  the  4th  of  May  1722,  he  was  ap- 
pointed Chief  Baron;  and  he  died  on  the  20th  of  October 
1723. 

28.  Sir  Robeft  Eyfe  was  appointed  Solicitor-General 
in  October  1708  ;   was  made  orie  of  the  Justices  of  the' 
King's  Bench,  jp  May  1710.-     He  was  raised  to  be  Lord 


STRAHAN,  RAYMOND,  ALAND.  25 

Chief- Justice  of  the  Common  Pleas,  and  he  died  in  Jan- 
uary 1736. 

29.  Doctor  William  Stralian  of  the  Commons.      He 
published  in  1722,  a  translation  of  Domat's  Civil  Law, 
in  two  volumes  folio,  which  was  republished  in  1737. 

30.  Sir  Robert  Raymond  was  the  Son  of  Sir  Thomas 
Raymond,  one  of  the  Justices  of  the  King's  Bench,  who 
died  in  1683.     Sir  Robert  was  appointed  Solicitor-Gene- 
ral in  May  1710,  and  Attorney-General  in  October  1714. 
he  was  made  one  df  the  Justices  of  the  King's  Bench  in 
January  1723,  and  was  advanced  to  be  Chief- Justice  of 
England,   on  the  28th  of  February  1724.     On  the  Earl 
of  Macclesfield's  recession,  he  was  appointed,  with  Sir 
Joseph  Jekyl  and  Sir  Geoffrey  Gilbert,  a  Commissioner 
of  the  Great  Seal,  on  the   7th  of  January   1724.      Sir 
Robert  Raymond  was  created  a  peer  on  the  21st  of  Jan- 
uary  1730-1.      He  died  on  the  19th  of  March    1733. 
By  Northey's  daughter,  he  left  a  .son,  who   dying   in 
1753,  the  peerage  became  extinct.      Lord  Raymond's 
Reports   and   Entries    were   published   long   after   his 
death,  and  have  been  often  republished  by  several  edi- 
tors. 

31.  Sir  John  Fortescue  Aland  was  born  in  London, 
in  March  1670,  the  son  of  Edmond  Fortescue  and  Sarah, 
daughter  of  H.  Aland  of  Waterford.  He  chose  the  law 
for  his  profession,  and  was  called  to  the  bar  by  the  In- 
ner Temple  Society.  He  was  appointed  the  Solicitor- 
General  in  1715 ;  and  he  was  made  a  Baron  of  the  Ex- 
chequer in  January  1716.  In  May  1718,  he  was  ap- 
pointed one  of  the  Justices  of  the  King's  Bench ;  and 
in  January  1728,  he  was  removed  to  the  Court  of  Com- 
mon Pleas.  Here  he  continued  in  the  performance  of  a 
very  important  trust,  till  the  26th  of  June  1746,  when 


26  THOMSON,    WEST,   FANE,  GIBSON. 

he  was  created  an  Irish  peer,  by  the  title  of  Lord  For- 
tescue  of  Credan,  in  the  county  of  Waterford.  He  did 
not  long  survive  this  splendid  reward  of  his  services  to 
the  State  ;  dying  at  seventy-six,  on  the  19th  of  Decem- 
ber 1746  ;  and  leaving  his  second  and  only  surviving 
son,  Dormer,  who  died  in  1781,  without  issue,  whereby 
the  title  became  extinct.  Sir  John  patronized  Elstob 
the  Saxon  scholar,  whom  he  encouraged  to  publish,  with 
corrections  and  enlargements,  the  Saxons  Laws,  appears 
to  have  republished  in  1714,  and  in  1719,  the  Lord 
Chancellor  Fortescue's  work  on  the  difference  between 
an  absolute  and  a  limited  monarchy,  with  a  learned  pre- 
face, concerning  the  Laws  of  England,  remarks  and  an 
index  by  Sir  John  himself. 

32.  Sir  William  Thorn-son  succeeded  Sir  Peter  King 
as  Recorder  of  London  in  1714  ;  was  appointed  Solicitor- 
General  on  the  8th  of  February  1716,  and  was  super- 
seded on  the  17th  of  March  1719.     He  was  appointed  a 
Baron  of  the  Exchequer,  on  the  27th  of  November  1722; 
and  he  died  in  November  1739. 

33.  Richard  West  was  appointed  counsel  to  the  Board 
of  Trade  in  1718,  and  died  Chancellor  of  Ireland   in 
1726. 

34.  Francis  Fane  succeeded  Mr,  West  as  Counsel  to 
the  Board  of  Trade  in  1725,  and  resigned  this  trust  in 
1746. 

35.  Edmond  Gibson  was  born  in  Westmoreland,  1699, 
He  entered  Queen's   College,  Oxonf  as  a  servitor.      He 
seems  to  have  early  applied  much  of  his  genius  and  at- 
tention to  old  English  literature.      He  published  at  Ox- 
ford in  1691,  the  Polemo  Muldinia  of  Drummond,  a  maca- 
ronic poem,  and  James  V.  King  of  Scot's  Christ's  Kirk 
on  the  Green,  with  illustrative  notes.     He  published,  at 


MORRIS,  HAMILTON,  BLENMAN,  RAWLINS,  ETC.  27 

that  seat  of  learning,  what  was  doubtless  of  more  im- 
portance, in  1692,  the  Saxon  Chronicle,  with  a  Latin 
translation,  an  index  and  notes.  He  was  soon  after  ap- 
pointed Chaplain  to  Tennison,  the  Bishop  of  London. 
He  took  his  Master  of  Arts  degree  in  1694  ;  and  in  the 
subsequent  year,  he  gave  an  edition  of  Camden's  Britan- 
nia which  his  gratitude  dedicated  to  Bishop  Tennison. 
Preferments  now  flowed  upon  him  in  rapid  course,  and 
his  Codex  Juris  ecclesiastici  Anglicani  he  gave  to  the 
learned  world  in  1713.  He  soon  had  his  reward;  when 
Wake  was  advanced  to  the  primacy,  from  Lincoln,  in 
1715,  Gibson  was  promoted  to  the  See  which  the  Pri- 
mate had  left ;  and  in  1723,  he  was  translated  to  Lon- 
clon,  where  he  acquired  the  jurisdiction  of  the  colonies, 
and  incidentally,  a  seat  at  the  Board  of  Trade  and  Plan- 
tations. He  died  at  Bath  in  1748,  leaving,  with  several 
children,  a  great  character  for  learning,  and  still  more 
for  attachment  to  the  Church,  whose  interests  he  had 
promoted, 

36.  The  Chief- Justice,  Lewis  Morris,  of  New  York* 

37.  Mr.  William  Hamilton,  of  Philadelphia. 

38.  The  Attorney-General  Elenman,  of  Barbadoes. 

39.  The  Attorney-General  Hawlins,  of  Barbadoes. 

40.  The   Chief-Justice  It.  H.  Morris,  of  New  Jersey. 

41.  The  Attorney-General  CMlton,  of  Barbadoes. 

42.  Sir  Clement  Wearg  was  appointed  Solicitor-Gen- 
eral on  the  3d  of  February  1723,  and  died  in  April  1726.. 
Lord  Mansfield  mentioned  him,  in  the.  case  of  Campbell 
and  Hall,  as  a  lawyer  of  great  name. 

43.  Sir  Philip   Yorke  was  born  at  Dover  in   1699.. 
Such  was  his  genius  and  diligence,  that  he  quickly  rose 
to  be  a  great  lawyer  and  a  great  man,  during  an  age  of 
learned  lawyers  and  considerable  men.      He  succeeded 


28  TALBOT,  REEVE,  LUTWYCHE,  WILLES. 

Sir  William  Thomson  as  Solicitor-General  in  March 
1719;  he  was  appointed  Attorney-General  in  January 
1723,  and  Chief-Justice  of  England  in  October  1733, 
when  two  thousand  pounds  a  year  was  added  to  the  sal- 
ary of  that  office,  which.  req,uire&  independence  and  suffi- 
ciency. The  Great  Seal  was  delivered  to  him  on  the 

•    * 

14th  of  February  1737,  which  he  held  for  nineteen 
years  with  universal  applause.  He  resigned,  it  in  Novem- 
ber 1756,  amidst  the  convulsions  and  regrets  of  his 
country. 

44.  Charles  Talbot,  the  son  of  William,  Bishop   of 
Durham,  who  died  in   1730,  was   appointed   Splicitor- 
General  on  the-  death  of  Sir  Clement  Wearg,  in  April 
1726  ;   and  was  constituted  Lord  Chancellor,  and  cre- 
ated Lord  Talbot  in   1733.      He  died  in  1737,  at  the 
premature  age  of  fifty-one,  having  previously  lost  his 
son,  who  was  deplored  in  the  pathetic  strains  of  Thom- 
son. 

45.  Sir  Thomas  Reeve  was  appointed. a  Justice  of  the 
Common  Pleas  in  February  1733-,  and  in  January  1736, 
Chief-Justice  of  the  same  Court ;    and  he  died-  in  1737, 
leaving  Instructions  to  his  Nephew  for  the  Study  of  the 
Law,  which  were  published  in  the.  Collectanea  Juridica, 
vol.  ii.  79. 

46.  Thomas  Lutwyclie  who  was,  probably,  the  son  of 
Sir  Edward  Lutwyclie,  died  on  the.  18th  of  November 
1734,  one  of  the  King's  Counsel.    He  entered  the  House 
of  Commons  in  1710,  and  continued  to  sit  in  it  till  his 
decease,  when  he  sat  for  Amersham. 

47.  Sir  John  Willes,  while  a  student  at  All-Souls 
College,  Oxford,  published  in  1714,  a  pamphlet  entitled, 
"  The  present  Constitution  and  the  Protestant  Succes- 
sion vindicated,"  in  answer  to  a  late   book,  the   well 


PAUL,  RYDER,  STRANGE,  MURRAY.  29; 

known  Hereditary  right  of  the  Crown  of  England  as-- 
serted.  In  1718  he  was  sent  to  Scotland  to  assist  in 
carrying  on  the  prosecutions  for  high  treason,  which  im- 
policy had  instituted  and  the  firmness  of  the  Grand  Ju-^ 
ries  disappointed,  by  throwing  out  the  bills.  He  was; 
nominated  Attorney-General  in  December  1733,  when 
Sir  Philip  Yorke  w^is  made  Chief- Justice  of  England  ; 
and  he  was  appointed,  in  .January  1737,  the  Chief-Jus- 
tice of  the  Common  Pleas.  ]Je  died  in  176;1.  His  Re- 
ports were  published  in  1799  by  Dornfordy  extending- 
from  1737  to  1758. 

48.  Doctor  Paul  of  the  Commons,  the  King's  Advo- 
cate. 

49.  Sir  Dudley  Ryder  became  Solicitor-General  in. 
December  173-3,  on  the  promotion  of  Mr.  Talbot,  and 
Attorney-General  in  January  1737,  and  Chief- Justice  of 
England,  on  the  death  of  Sir  William   Lee,  in  April 
1754.     He  died  on  the  25th  of  April  1756.     He  was  to. 
have  waited  upon  his  Majesty  the  day  before,  on  ac- 
count  of-  his  being  created  a  peer,  by  the  title  of  Lord 
Ryder  of  Harrowby,  Lincolnshire,  but  his  indisposition 
prevented  his  having  that  honor,  which  he  bad  merited; 
by  his  talents  and  services. 

50.  Sir  John  Strange  became  Solicitor-<General  on  the. 
promotion  of  Sir  Dudley  Ryder.      He  was  chosen  Re-. 
corder  of  London  in  November  1739  ;    and  he  was  ap-, 
pointed  Master  of  the  Rolls  in.  January  1750  ;   he  died 
in  1754.   He  is  remembered5  for  his  Reports,  which  were, 
published  by  his  son  in  1755. 

51.  The  Hon.    William  Murray,  the  fourth  son  o£ 
David,  Viscount  of  Stormont,  was  born  at  Perth  in  1705  ; 
and  was  educated  at  Westminster  School  and   Christ's- 


30  JKVRRAT. 

Church,  Oxford.*  Returning  from  his  travels,  he  entered 
into  Lincoln's  Inn  where  he  was  called  to  the  bar  in  1731. 
Here  his  abilities  soon  became  known,  both  as  a  lawyer 
and  an  orator,  and  he  immediately  came  into  full  busi-. 
ness  of  the  highest  kind.  In  November  1742,  he  was 
appointed  Solicitor-General,  on  the  resignation  of  Sir 
Jdhn  Strange  ;  and  he  was,  immediately  after,  chosen 
jnto  Parliament  for  Boroughbridge,  and  for  it  served  till 
he  was  appointed  Chief-Justice.  This  i,s  an-  important 
fact,  as  it  shows  that  he  obtained  his  first  preferment 
from  Westminster  Hall,  and  not  from  the  Senate  House ; 
§Hid  he  was  not  even  a  King's  Counsel  till  November 
1742.  How  much  he  was  consulted  by  the  Pelhams, 
anct  how-  much  his  advice  was  followed  by  them,  we 
may  learn  from  Doddington's  Diary.  He  was,  of  course, 
appointed  one  of  the  Managers  for  the  Commons,  on 
Lord  Lovat's  impeachment;  and  such  was  at  once  the 
moderation  of  his  manner,  the  candor  of  his  spirit  and 
tjhe  efficacy  of  his  eloquence,  that  he  wa,^  thanked,  both 
by  the  culprit  and  the  Court.  He  was  long  Solicitor, 
not  being  appointed  Attorney-General  till  April  1754  ; 
this  furnishes  an  other  point  of  instruction,  that  perse- 


*  He  was  admitted  to  St.  Peter's  College,  Westminster  in  1719,  at  the 
age  of  fourteen;  and  in  1723,  was  elected  to  Oxford.  It  is  curious  to 
ijemark,  that  the  College  Registrar,  being  probably,  somewhat  dull  of 
Bearing,  recorded  the  admission  of  Mr.  Murray,  aged  eighteen,  born  at 
Bat.h,  in  the  county  of  Somerset.  Sir  William  Blackstone  dining  w,ith 
Lord  Mansfield,  and  saying  that  he  could  prove  by  record  evidence,  that 
his  Lordship  was  not  a  Scotchman  born,  but  an  Englishman,  produced  a 
copy  from  the  College  matriculation  book,  which  made  his  Lordship 
laugh  very  much ;  and  he  explained  the  mistake,  by  supposing  that  the 
person  who  stated  his  place  of  birth,  to  have  pronounced  PerUi  with 
a,  broad  accent,  which  tJae  Registrar  ini£took  for  Bath. 


MURRAY.  dl 

veraiice  in  an  inferior  station,  generally  leads  on  to  the 
highest ;  and  it  evinces,  also,  his  unassuming  gentleness. 
When  Sir  Dudley  Ryder  sunk  under  his  infirmities,  the 
Attorney-General  Murray  was  immediately  (appointed 
Chief-Justice ;  he  was  created  Lord  Mansfield  on  th« 
8th  of  November  1756,  and  he  was,  of  course,  called 
into  the  Privy  .Council.  Of  'his  conduct,  during  two 
and  thirty  years  as  Chief-Justice,  the  Juridical  Reports 
are  the  Records  and  the  Commentaries.  During  the 
political  contests  of  the  year  1757,  he  acted  officially  as 
Chancellor  of  the  Exchequer  ^  in  the  room  of  Mr-.  Legge: 
In  1774  he  went  to  Paris  on  a  private  embassy,  and  on 
his  private  affairs,  probably ;  Lord  Stormont,  his  nephew 
and  heir,  being  then  Ambassador  at  the  French  Court.- 
He  was  three  times  offered  the  Great  Seal,  which  ke  ag 
often  declined.  He  was  advanced  to  an  Earldom,  in 
October  1776  ;  and  by  a  new  grant,  the  remainder,  after 
failure  of  his  own  issue  male,  was  limited  to  his  heir,- 
the  Viscount  of.Stormont.  During  the  tumults  of  17807 
his  house  in  Bloomsbury  Square  was  burnt  by  the  mob,- 
with  his  books  and  manuscripts.  With  his  usual  deli= 
cacy,  he  declined  all  compensation,  as  he  knew  that  he 
could  not  be  compensated.  He  repaid  the  popular  insult 
by  an  augmented  assiduity  in  the  labors  of  his  high 
trust,  for  the  popular  good.  At  length;  his  infirmities 
induced  him  to  resign  his  office  in  January  1788,  when 
he  was  followed  by  the  regrets  Of  the  profession,  and 
the  genuine  respect  of  ail  enlightened  public.  He  died 
at  Camwood  on  the  20th  of  March  1793j  aged  eighty^ 
eight,  leaving  a  very  great  fortune,  the  necessary  effect 
of  prudent  management  throughout  so  many  years.  His 
fine  intellect  and  retentive  memory  remained  to  the 


82  MURRAY,  HENLEY,  PRATT. 

last,  though  he  had  lived,  for  several  years,  under  great 
debility  of  person.  In  April  1784,  he  lost  his  wife, 
Lady  Elizabeth  Finch,  to  whom  he  was  married  in  1738, 
yet  by  whom  he  had  no  issue.  On  the  morning  of  the 
28th  of  March,  he  was  buried  in  the  same  vault  with 
his  late  Countess,  in  Westminster  Abbey.  The  Judges 
of  the  several  Courts,  and  the  most  eminent  lawyers  in- 
tended to  have  followed  to  the  tomb  the  remains  of  this 
eminent  jurist ;  but  they  were  assured  by  Lord  Stor- 
inont,  that  it  was  the  particular  request  of  the  late  Earl, 
that  his  funeral  should  be  as  private  as  possible.  A  mon- 
ument has  been  erected  to  his  memory,  by  the  singular 
affection  of  a  private  person,  in  the  same  abbey  that  is 
crowded  with  monuments  to  the  celebrated  characters, 
which  this  nation  has  produced  and  fostered  in  every 
age. 

52.  Sir  Robert  Henley  succeeded  Lord  Mansfield  as 
Attorney-General  in   1756.      This  was  to  be  expected, 
from  the  notices  of  him  in  Doddington's  Diary.      He 
was  appointed  the  Keeper  of  the  Seal,  on  the  30th  of 
January  1757,  and  he  was  created  Lord  Henley  in  1760 ; 
appointed  Lord  Chancellor  in  January  1761 ;  and  created 
Earl  of  Northington  in  May  1764  ;    and  was  made  Lord 
President  of  the  Council  in  June  1766.     He  died  on  the 
14th  of  January  lIH. 

53.  Charles  Pratt,  the  third  son  of  the  Chief-Justice, 
was   educated  at  Eton  and  King's  College,  Cambridge. 
He  was,  though  in  obscurity  and  without  any  previous 
office   in   the   law,  appointed   Attorney-General   when 
JHenley  was  made  Lord  Keeper  in  Jime  1757.      He  was 
made  Chief-Justice  of  the  Common  Pleas  in  1762,  and  it 
Was  from  this  height,  during  a  season  of  perturbation, 


PRATT,   YORKE.  33 

that  he  gained  his  popular  honors.  Other  lawyers  and 
other  judges  as  great  as  he,  have  coveted  the  popularity 
which  follows  one,  rather  than  what  is  followed.  In  1765 
he  was  raised  to  the  peerage,  and  in  1766  was  appointed  to 
the  Seals,  which  he  lost  by  maintaining  doctrines  that 
his  coadjutors  did  not  approve.  He  sided  with  the  colonial 
pretensions  and  opposed  the  government  during  the  war 
of  the  revolted  colonies  ;  coming  in  collision  with  Lord 
Mansfield,  while  maintaining  such  pretensions,  he  lost 
ground  as  an  orator  and  a  lawyer,  whatever  he  may 
have  added  to  his  popularity.  In  1782,  he  was  ap- 
pointed Lord  President  of  the  Council,  which  he  held  du- 
ring his  life,  if  we  except  a  short  recession  in  1783.  On 
the  18th  of  April  1794,  he  died,  having  been  created  in 
May,  1786,  Viscount  Bay  ham  and  Earl  Camden.  He  is 
ranked  among  the  royal  and  noble  authors,  as  the  writer 
of  a  tract  on  the  nature  and  effect  of  the  Habeas  Corpus 
Act,  the  great  bulwark  of  English  liberty,  which  he  is 
said  to  have  published  in  1758  ;  his  argument  in  the 
case  of  Hindson  and  Kersey,  wherein  Lord  Mansfield's 
argument  in  Windham  and  Chetwynd;'  was  considered 
and  answered,  was  given  to  the  public  in  1766.* 

54.  The  Hon.  Charles  Yorlce,  the  second  son  of  the 
great  Earl  of  Hardwick,  was  born  in  1722,  and  owed 
his  scholastic  education  to  Cambridge,  as  he  owed  his 
law  learning  to  Lincoln's  Inn,  which  has  produced  so 
many  profound  lawyers.  He  was  a  coadjutor  in  writing 


*  This  argument  when  published  in  London,  was  suppressed  by  order 
of  the  Court  of  Common  Pleas,  over  which  Lord  Camden  then  pre- 
sided ;  but  it  was  soon  published  in  an  8vo.  pamphlet,  at  Dublin,  1766. 
Park's  edit.  Cat.  R.  and  N.  authors,  vol.  4,  360. 
6 


34  LLOYD,  HAY,  NORTON. 

the  celebrated  Athenian  Letters,  and  amused  himself 
with  poetry.  In  1745  he  gave  to  the  learned  world  his 
Considerations  on  the  Law  of  Forfeitures,  which  went 
to  the  fourth  edition  in  1775,  at  the  eve  of  another  re- 
volt. He  entered  Parliament  as  representative  for 
Ryegate,  in  1747,  at  the  age  of  25.  He  succeeded  Sir 
Richard  Lloyd  as  Solicitor-General  in  November  1756, 
and  followed  Lord  Camden  as  Attorney,  in  December 
1761 ;  but  he  resigned  this  office  in  November  1763,  and 
was  again  appointed  in  August  1765.  He  was  chosen 
a  Fellow  of  the  Royal  Society,  a  Trustee  of  the  British 
Museum  and  Recorder  of  Dover.  At  length,  in  1770, 
he  was  appointed  Lord  Chancellor,  and  was  created  a 
peer  ;  but  dying  in  the  same  month,  before  his  patent 
had  passed  the  Great  Seal,  the  creation  did  not  take 
effect,  though  the  patent  had  passed  through  every  other 
form. 

55.  Sir  Richard  Lloyd  was  appointed  Solicitor-Gen- 
eral in  April  1754,  upon  the  promotion  of  Lord  Mans- 
field.    In  1759,  he  was  called  to  the  degree  of  Sergeant, 
on  his  being  made  Baron  of  the  Exchequer,  and  he  died 
in  1761. 

56.  Dr.  George  Hay,  the  King's  Advocate. 

57.  Sir  JFletcker  Norton  was  born  on  the  23d  of  June 
1716,   and    in   May    1741,   married  Grace,   the   eldest 
daughter  of  Sir  William  Chappie,  one  of  the  Judges  of 
the  King's  Bench.     He  was  appointed  Solicitor-General 
in  December   1761,  in  the  room   of  the  Hon.  Charles 
Yorke,  and  Attorney-General  in  November  1763,  which 
he  held,  probably,  till  August  1765.     In  February  1769, 
he  was  appointed  Chief- Justice  in  Eyre,  south  of  Trent, 


DE  GREY,  WILLES,  KENYON.  35 

which  he  held  till  June  1789.  He  was  chosen  Speaker 
of  the  House  of  Commons  in  1770,  and  continued  to  fill 
that  distinguished  station  till  1780.  He  was  created 
Lord  Grantley  on  the  9th  of  April  1782,  and  he  died  on 
the  1st  of  January  1789. 

58.  Sir   William  J3&  Grey  was   appointed  Solicitor- 
General  in  December  1763,  in  the  room  of  Sir  F.  Norton, 
and  Attorney-General  in  August  1766  *   he  was  made 
Chief-Justice  of  the  Common  Pleas  in  January  1771>  in 
the  room  of  Sir  J.  E.  Wilmot,  resigned.      He  was  cre- 
ated, Lord  Walsingham  in   1780,  and  died  on  the  9th  of 
May  1781, 

59.  Edward  Willes  was  appointed   Solicitor-General 
in  August  1766,  in  the  room  of  Sir  William  de  Grey> 
and  in  June  1768,.  one  of  the  Justices  of  the   King^s 
Bench,,  in  the  place  of  Mr.  Justice  Hewitt. 

60.  Sir  Lloyd  Kenyon,  of  the  Middle  Temple,  wasy 
on  the  20th  of  April  1782,  appointed  Attorney-General 
in  the  room  of  Wallace,  who,,  however,,  was  restored  on 
the  16th  of  April  1783>  and  on  the  26th  of  December 
1783,  he  was  again  appointed  Attorney-General,  acting 
at  the  same  time,  as  Chief-Justice  of  Chester.      Such 
shifts  of  policy  s&ow  the  distraction  of  the  times.    He 
was  appointed  Master  of  the  Rolls..      In  June  1788,  he- 
was  raised  to  the  yet  higher  office  of  Chief-Justice   of 
England,  on  the  resignation  of  Lord  Mansfield,  and  wa& 
at  the  same  time,  created  Lord  Kenyon  of  Gredingtony 
in  the  county  of  Flint.      He  died  at  Bath  on  the  2d 
of  April,  1802,  while  Chief- Justice,  custos  rotulorum  of 
Flintshire,   and  one  of  the  Governors  of  the   Charter- 
House.. 


36  ARDEN, MACDONALD. 

61.  Sir  Jtychard  P.  Arden,  the  second  son  of  John 
Arden,  of  Arden,  in  Cheshire,  was  educated  under  the 
tuition  of  Thyer,  the  editor  of  Butler's  Remains,  and  pro- 
ceeded to  Trinity  College,  Cambridge,  wherein  he  dis- 
tinguished himself.      He  took  his  M.  A.  degree  in  1769. 
He  was  called  to  the  bar  by  the  Middle  Temple  Society, 
and  was  appointed  Solicitor-General  on  the  26th  of  De- 
cember   1783,  and   Attorney-General   on   the    30th   of 
March  1784.      He  succeeded  Sir  Lloyd  Kenyon  as  Mas- 
ter of  the  Rolls,  in  1788.      He  was  appointed  Chief- 
Justice  of  the  Common  Pleas  in  May  1801,  when  he  was 
created  Lord  Alvanley,  and  he  died  on   the  19th   of 
March  1804. 

62.  Sir  Archibald  Macdonald  was  born  in  1747,  the 
son  of  Sir  Alexander  Macdonald,  of  Slate,  by  the  Lady 
Margaret  Montgomery,  the  daughter  of  the  Earl  of  Eg- 
lington,  and  is,  of  course,  the  brother  of  the  late  Lord 
Macdonald.      His  education,  however,  was  English  ;   he 
entered  Westminster  School  in  1760,  at  the  age  of  thir- 
teen, and  was  elected  to  Christ  Church,  Oxford,  in  1764. 
He  was  elected  Representative  in  Parliament  for  Hindon, 
in  1774,  and  for  Newcastle  under  Line,  in  1780  and  1784  ; 
he  was  appointed  one  of  the  King's  Counsel  in  1778,  and 
one  of  the  Judges  for  Wales  in  1780.    In  April  1784,  he 
was  appointed  successor  to  Sir  Richard  P.  Arden  as  Solici- 
tor-General ;  and  in  September  1788,  he  also  succeeded  Sir 
Richard  as  Attorney-General.    In  February  1793,  he  was 
appointed  Chief  Baron  of  the  Exchequer,  in  the  room  of 
Sir  J.  Eyre,  who  was  promoted  to  be  Chief-Justice  of  the 
Common  Pleas  ;   and  Sir  Archibald  was  sworn  a  Privy 
Councilor  on  the  15th.    After  discharging  this  great  trust 


LAMB,  JACKSON,  KEMP,  SMITH,  ETC.          37 

for  upwards  of  twenty  years,  with  satisfaction  to  him- 
self and  benefit  to  the  public,  he  gave  in  his  resigna- 
tion, on  account  of  the  failure  of  his  eye-sight,  in  Octor 
ber  1813,  and  on  the  6th  of  November  folio wing>  he  was 
created  a  Baronet  of  the  United  Kingdom,  in  considerar 
tion  of  his  long  and  faithful  services. 

63.  Sir  Matthew  Lamb,  who  succeeded  Mr.  Fane  a.s 
Counsel  to  the  Board  of  Trade  in  1746,  and  d,ied.  in  N,o-~ 
vember  1768. 

64.  Richard  Jackson,  who  was  appointed  Counsel  to 
the  Board  of  Trade  in  April,  1770,  and  died  on  the  6th 
of  May  1787,  a  Privy  Councilor  and  Clerk  of  the  Paper 
Office  in  Ireland,  an  office  which  Lord  Bowes  had  held. 

65.  William  Jfemp,  Barrister-atJaw,  who  died  AU 
torney-General  of  New  York,  about  the  year  1793. 

66.  William  Smith,  who  was  a  lawyer  of  the  sam$ 
Province,  and  died  Chief- Justice  of  Quebec. 

67.  James  Holy  day,  of  Maryland. 

68.  William  Paca,  of  the  same  Province. 

69.  The  Hon.  Daniel  Dulany,  Secretary,  and  one  of 
the  Council,  of  the  same  Province. 

70.  Sir  James  Marriot,  Doctor  of  Laws,  was  born  ia 
1731,  the  son  of  an  attorney  in  Hatton  Garden.    Choos- 
ing the  civil  law  for  his  profession,  he  received  his  uni- 
versity education  at  Cambridge.     He  is  said  to  have  ob-_ 
tained  his  first  promotion  by  arranging   the  Duke   of 
Newcastle's  library,  when  Chancellor  of  the  University 
of  Cambridge.     He  was  elected  Master  of  Trinity  Hall,, 
on  the  death  of  Dr.  Dickens.     He  distinguished  himself 
as  a  civilian',  by  publishing  in  1759,  "  The  Case  of  the 
Dutch  Prizes  taken  in  the  War  before  the  last."      In 
July,   1764,  he  was  appointed  the  King's  Advocate,  in 
the  room  of  Sir  George  Hay,  who  was  promoted  to  b^ 


38  MARRIOT,  WYNNE. 

Judge  of  the  Arches  and  the  Prerogative  Courts.  In 
1768,  being  then  Vice-Chancellor  of  the  University  of 
Cambridge,  he  presented  the  honors  of  that  illustrious 
body,  to  the  King  of  Denmark,  at  Newmarket.  In  1769  - 
he  published  "  The  Rights  and  Privileges  of  both  th,e 
Universities,  and  of  the  University  of  Cambridge  in 
particular,  defended  in  a  Charge  to  the  Grand  Jury  at 
the  Quarter  Sessions  for  the.  Peace,  at  Cambridge,  Octo-. 
ber  the  10th,  1768  ;"  he  also  published  his  argument  in 
the  case  of  the  Colleges  of  Christ  and  Emanuel.  His 
poetry  may  be  seen  in  Dodsley's  Collections..  He  dis-- 
tinguished  himself  by  the  acuteness  of  his  answers,,  when 
examined  at  the  bar  of  the  House  of  Commons,  on  the 
Quebec  Constitution.  He  was  appointed  Judge  of  the 
High  Court  of  Admiralty  in  the  room-  of  Sir  George  Hay.. 
He  resigned  this  high  office  in  October  1798,  and  at  the 
age  of  72  he  died,  on  the  21st  of  March  1803,  at  two 
o'clock  in  the  morning,  while  sitting  in  his  cfyair,.  at 
Twinstead  Hall,  near  Sudbury,  which  he  had  represented 
in  two  Parliaments.  His  learned  and  singular  judgment 
in  the  High  Court  of  Admiralty,  in  the  case  of  the  ship 
Columbus,  is  published  in  the  Collectanea  Juridica,  vol., 
l,p.82. 

71.  &tr  William  Wynne^  Doctor  of  Laws,  seems  to 
have  followed  the  track  of  Sir  James  Harriot  to  tlje  top 
of  his  profession,  which  has  been  dignified  by  so  ma»n>y 
Qminent  men,  who  were  distinguished  by  their  talents 
and  probity.  In  October  1778,  he  was  appointed  Vicar- 
General  of  the  province  of  Canterbury,  and  his  Majes- 
ty's Advocate-General.  On  the  decease  of  Sir  J.  Mar- 
ijiot,  was  elected  in  his  room,  Sir  Wm.  Wynne,  one  of  his 
Majesty's  Privy  Council,  Official  Principal  of  the  Arches 
Court  of  Canterbury,  Master  of  the  Prerogative  Court  of 


REEVES,  DE  WITT,  TEMPLE.  39 

Canterbury,  Commissary  of  the  Deanery  of  the  Arches, 
and  Master  of  Trinity  Hall,  Cambridge. 

72.  John  Reeves, 

73.  John  J)e  Witt  was  born  of  a  noble  family  in  1625  ; 
became  pensionary  of  Dordrecht,  and  pensionary  of  Hol- 
land, Intendant  of  the  Fiefs,  and  Keeper  of  the  Seals. 
During  troublous  times  he  governed  Holland  with  great 
lability,  though  he  could  not  always  command  success-. 
He  excluded  William  the  Third,  Prince  of  Orange,  from 
his  constitutional  share  in  the  government  of  the  States-. 
He  was  thereupon  attacked   by   four   assassins.      The 
Prince  of  Oraiige  was  restored  to  the  Stadtholdership  \ 
but  two  great  men  could  not  safely  exist   at  the  same 
time,  within  the  same  republic ;  mutual  accusations  en= 
sued  ;  and  a  popular  tumult  arose,  which  sacrificed  De 
Witt  to  the  people's  passions,  at  the  Hague,  in  1672  ;  he 
died)  repeating  with  his  last  breath,  Horace's   Ode — - 
Justem  et  tenaccm  prop&siti  virum,  dec* 

74.  Sir   William  Temple  was  born  in   1629,  at  Lon- 
don, the  son  of  Sir  William  Temple,  of  Sheen,  and  Mas- 
ter of  the  Rolls  in  Ireland,  by  a  sister  of  the  learned 
Henry  Hammond.      He  was  a  student  at  Emanuel  Col- 
lege, Cambridge^  under  the  erudite  Cudworth.      After 
some  travel,  he  retired  to  a  private  life  in  Ireland,  during 
the  usurpation.     At  the  restoration,  he  returned  to  Eng- 
land with  a  view  of  serving  his  country,  chiefly,  as  a  nego- 
tiator.   He  is  chiefly  praised  for  settling  the  triple  league 
in  1668  ;  and  secondly j  for  procuring  the  marriage  of  the 

*  The  man  whose  mind  on  virtue  bentj 
Pursues  some  great  and  good  intent, 

With  undiverted  aim, 
Serene  beholds  the  angry  crowd, 
Nor  can  their  clamors,  fierce  and  loud, 

His  stubborn  honor  tame. 


40  TEMPLE. 

Princess  Mary  with  the  Prince  of  Orange.  Both  DeWitt 
and  the  States  of  Holland  expressed  their  satisfaction 
with  the  conduct  of  Temple.  After  the  peace  o£  Nime- 
guen,  he  was  recalled  from  Holland,  in  February,  1678-9. 
He  now  applied  himself  to  his  private  studies.  He  died 
in  1700,  at  Moor  Park,  near  Farnham,  in  the  seventy- 
first  year  of  his  age  ;  leaving  a  character  for  principles 
and  knowledge,  which  has  been  drawn  in  very  opposite 
j  by  very  different  parties. 


OPINIONS 

OF 

EMINENT   LAWYERS 

ON  VARIOUS  POINTS  OF 

ENGLISH    JURISPRUDENCE 


First.  The  King,  who  wears  the  Crown  of  Great  Britain 
and  Ireland,  enjoys  the  sovereignty  of  the  general  terri- 
tory belonging  to  the  same  Crown,  with  the  allegiance 
of  the  inhabitants  thereof,  under  the  various  modifica- 
tions of  the  existing  law.  The  following  opinions  seem 
to  acknowledge  the  truth  of  that  proposition,  as  a  funda- 
mental principle  of  the  established  Constitution. 

The  King's  prerogative,  within  those  territories,  may 
be  considered,  then,  under  two  heads :  I.  Of  His  Ecclesi- 
astical authority  :  II.  Of  his  Civil  authority. 

I.  Of  the  King's  Ecclesiastical  authority  abroad.  The 
royal  prerogative,  in  this  respect,  is  distributed  into 
two  subordinate  heads :  1st,  The  Bishop  of  London  is 
diocesan  of  the  colonies  :  2d,  The  Archbishop  of  Canter- 
bury's prerogative  power,  concerning  wills  and  adminis- 
tions,  is  superior  to  the  analogous  prerogative  powers,  in 

the  colonies. 
7 


42          -  OPINIONS    OF  EMINENT    LAWYERS. 

(1.)  The  opinion  of  the  Attorney-General  Northey,  on 
this  subject,  in  1705. 

To  the  Right  Hon.,  the  Lords  Commissioners,  for  Trade 
and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  Jr.,  your  Secretary,  I  have  consid- 
ered of  the  annexed  extract  of  a  letter  from  Colonel 
Seymour,  Governor  of  Maryland,  relating  to  the  Jesuits 
and  papists  there  ;  and  the  extract  also  sent  me,  of  the 
grant  of  the  Province  of  Maryland  to  Lord  Baltimore, 
relating  to  the  ecclesiastical  power.  And  the  questions 
proposed  thereon,  whether  the  laws  of  England  against 
Romish  priests,  are  in  force  in  the  plantations,  and 
whether  her  Majesty  may  not  direct  Jesuits,  or  Romish 
priests,  to  be  turned  out  of  Maryland. 

And  as  to  the  said  clause  in  the  grant  of  the  Province 
of  Maryland  to  Lord  Baltimore,  relating  to  the  ecclesiasti- 
cal power,  I  am  of  opinion,  the  same  doth  not  give  him 
any  power  to  do  any  thing  contrary  to  the  ecclesiastical 
laws  of  England,  but  he  hath  only  the  advowsons  of, 
and  power  to  erect  and  consecrate  churches,  and  such 
power  as  the  Bishop  of  Durham  had,  as  Earl  Palatine, 
in  his  County  Palatine,  who  was  subject  to  the  laws  of 
England  ;  and  the  consecrations  of  chapels  ought  to  be, 
as  in  England,  by  orthodox  ministers  only, 

As  to  the  question,  whether  the  laws  of  England,, 
against  Romish  priests,  are  in  force  in  the  plantations ;  by 
the  statute  of  27mo.  of  Elizabeth,  cap,  2.,  every  Jesuit, 
seminary  priest,  or  other  such  priest,  deacon  or  religious, 
or  ecclesiastical  person,  born  within-  this  realm  or  any 


THE  KING'S  PREROGATIVE  ABROAD.  43 

other  Her  Majesty's  dominions,  made,  ordained  or 
professed,  by  any  authority  or  jurisdiction,  derived,  chf  1- 
lenged  or  pretended,  from  the  See  of  Rome,  who  shall 
come  into,  or  be,  or  remain  in  any  part  of  this  realm  or 
any  other  of  her  Majesty^s  dominions,  is  guilty  of  high 
treason.  It  is  plain,  that  law  extended  to  all  the  domin- 
ions the  Queen  had  when  it  was  made  ;  but  some  doubt 
hath  been  made,  whether  it  extendeth  to  dominions  ac- 
quired after,  as  the  plantations  have  been. 

By  the  statute  llmo.  William,  for  preventing  the 
further  growth  of  popery,  it  is  provided  that,  if  any  po- 
pish bishop,  priest  or  Jesuit,  whatsoever,  shall  say  mass, 
or  exercise  any  other  part  of  the  office  or  function  of  a 
popish  bishop  or  priest,  within  this  realm,  or  the  do- 
minions thereunto  belonging,  such  person  being  thereof 
lawfully  convicted,  shall  be  adjudged  to  perpetual  im- 
prisonment, in  such  place  within  this  kingdom,  as  her 
Majesty,  by  the  advice  of  her  Privy  Council,  shall  ap- 
point. I  am  of  opinion  this  law  extends  to  the  planta- 
tions, they  being  dominions  belonging  to  the  realm  of 
England,  and  extends  to  all  priests,  foreigners  as  well  as 


As  to  the  question,  whether  Her  Majesty  may  not  di- 
rect Jesuits  or  Romish  priests  to  be  turned  out  of  Mary- 
land, I  am  of  opinion,  if  the  Jesuits  or  priests  be  aliens, 
not  made  denizens  or  naturalized,  Her  Majesty  may,  by 
law,  compel  them  to  depart  Maryland  ;  if  they  be  Her 
Majesty's  natural  born  subjects,  they  cannot  be  banished 
from  Her  Majesty's  dominions,  but  may  be  proceeded 
against  on  the  last  before-mentioned  law. 

October  18,  1705,  EDW.  NORTHEY. 


44  OPINIONS  OF  EMINENT  LAWYERS. 

(2.)  The  letter  of  the  Right  Rev.  Dr.  Gibson,  the 
JBisJiop  of  London,  to  the  Diike  of  Newcastle. 

May  it  please  your  Grace ; 

I  troubled  your  Grace  lately  with  an  account  of  what 
the  Independent  ministers  in  New  England  are  doing, 
in  order  to  obtain  powers  for  holding  a  regular  synod. 
To  what  I  then  mentioned  as  deserving,  in  my  opinion, 
the  consideration  of  the  ministry,  I  desire  to  add,  that 
it  may  be  a  doubt  upon  the  act  of  union,  between  Eng- 
land and  Scotland,  whether  the  Independents  in  New 
England,  are  any  more  than  a  tolerated  ministry  and 
people. 

The  act  of  uniformity,  13,  14,  Ch.  II.,  extends  no  far- 
ther than  the  realm  of  England,  dominions  of  Wales 
and  Berwick-upon-Tweed  ;  and  therefore,  left  the  Crown 
at  liberty  to  make  such  worship  and  discipline  as  the 
King  or  Queen,  for  the  time  being,  may  think  proper, 
the  established  worship  and  discipline  of  the  other  ter- 
ritories. 

But  by  the  act  of  union,  6  Ann,  ch.  57  every  King 
and  Queen,  at  their  coronation,  "  Shall  take  and  subscribe 
an  oath  to  maintain  and  preserve  inviolably,  the  settle- 
ment of  the  Church  of  England,  and  the  doctrine,  wor- 
ship, discipline  and  government  thereof,  as  by  law  estab- 
lished, within  the  kingdoms  of  England,  Ireland,  the 
dominions  of  Wales,  and  town  of  Berwick-upon-Tweed, 
and  territories  thereto  belonging." 

If,  by  this  clause,  the  ministers  and  people  of  the 
Church  of  England,  in  the  plantations,  be  made  the  es- 
tablished church  within  the  general  governments,  then 
all  the  rest  are  only  tolerated,  as  here  in  England.  And 
if  so,  this  double  ill  use  may  be  made  of  permitting  the 
independent  ministers  of  NPW  England  to  hold  a  regu- 


THE  KING'S  PREROGATIVE  ABROAD.  45 

lar  synod:  the  established  clergy  here  may  think  it 
hard  to  be  debarred  of  a  liberty,  which  is  indulged  the 
tolerated  ministers  there,  and  the  tolerated  ministers 
here  may  think  it  equitable  that  their  privileges  should 
not  be  less  than  those  of  their  brethren  in  New  England. 
I  think  it  my  duty  to  suggest  these  things  for  the  consid- 
eration of  your  Grace,  and  the  other  ministers  ;  and  perr 
haps,  it  may  not  be  judged  improper  to  take,  the  opinions 
of  the  Attorney  and  Solicitor-General  upon  the  fore- 
mentioned  statute  of  the  6th  of  the  Queen. 

I  am,  EDM.  LONDON. 

August  21,  1725. 

(3.)  The  joint  opinions  of  the  Attorney  and  Solicitor- 
General^  Yorlce,  and  Wearg,  in  1725. 
To  their  Excellencies,  the  Lords  Justices. 
May  it  please  your  Excellencies  ; 

In  humble  obedience  to  your  Excellencies'-  commands, 
signified  to  us  by  Mr.  Delafaye,  we  have  considered  the 
several  matters  referred  to  us  by  letter  of  the  24th  inst., 
transmitting  to  us  the  enclosed  copies  of  some  letters, 
which  His  Grace,  the  Duke  of  Newcastle,  had  received 
from  the  Lord  Bishop  of  London,  concerning  an  ad- 
dress from  the  General  Convention  of  the  Independ-, 
ent  ministers  in  New  England,  to  the  Lieutenant- 
Governor,  Council  and  House  of  Burgesses,  there,  de-,, 
siring  them  to  call  the  several  churches  in  that  province, 
to  meet,  by  their  pastors  and  messengers,  in  a  synod-,  to 
which  the  said  Council  and  House  of  Representatives, 
have  given  their  consent,  and  directing  us  to  inquire 
into  this  matter,  and  report  our  opinions  upon  several 
questions  proposed  in  the  said  letter. 

And  we  humbly  certify,  your  Excellencies,  that,  as 
to  the  several  matters  of  fact  contained-  in  the  said  let- 


46  OPINIONS  OF  EMINENT  LAWYERS. 

ters  and  papers  therewith  transmitted,  we  have  been 
obliged  to  take  the  same  as  they  are  therein  stated,  hav- 
ing at  present,  no  opportunity  of  obtaining  strict  reg- 
ular proof ;  and  therefore,  such  parts  of  this  report  as 
arise  out  of  those  facts,  are  grounded  upon  a  supposition 
that  the  relations,  contained  in,  those  letters  and  papers, 
are  true. 

The  address  of  the  General  Convention  of  Ministers  is 
mentioned  to  be  in  these  words,  to  wit :. 

'•'•  To  the  very  Honorable  William  Dummer,  Esq., 
Lieutenant-Governor  an^  Commandeivin^Chief^  and  to 
the  Honorable  the  Councillors,  to  the  Honorable  the 
Representatives,  in  the  great  and  General  Court  of  His 
Majesty's  Province  of  the  Massachusetts  Bay,  assembled, 
and  now  sitting,  a  memorial  and  an  address  humbly  pre- 
sented. 

"  At  a  General  Convention  of  Ministers  from  several 
parts  of  the  Province,  at  Boston,  27th  May,  1725. 

"  Considering  the  great  and  visible  d£Qav,  of  piety  in 
the  country,  and  the  growth  of  many  miscarriages, 
which  we  may  fear  has  provoked  th.e  glorious  Lord  in  a 
series  of  various  judgments,  wonderfully  to  distress  us  ^ 
considering  also,  the  laudable  example  of  our  predeces- 
sors, to  recover  and  establish  the  faith  and  order  of  the 
Gospel  in  the  churches,  and  provide  against  what  immor?. 
alities  might  threaten  to  impair  them,  in  the  way  of  gen- 
eral synods  convened  for  that  purpose  ;.  and  considering 
that  forty -five  years  have  now  rolled  away  since  these- 
<?hurches  have  now  seen  any  such  convention ; — it  is  hum-. 
bly  desired  that  the  honored  General  Court  would  express 
their  concern  for  the  great  interests  of  religion  in  the 
country,  by  calling  the  several  churches  in  the  Province- 
to  meet,  by  their  pastors  and  messengers,,  in  a  synod,  and 


47 

from  thence  offer  their  advice  upon  that  weighty  case, 
which  the  circumstances  of  the  day  do  loudly  call  to  be 
considered :  '  What  are  the  miscarriages  whereof  we  have 
reason  to  think  the  judgments  of  Heaven  upon  us  call  us 
to  be  more  generally  sensible,  and  what  may  be  the  most 
evangelical  and  effectual  expedients  to  put  a  stop  to  those 
or  the  like  miscarriages  1 '  This  proposal  we  humbly 
make,  in  hopes  that  if  it  be  prosecuted,  it  may  be  fol- 
lowed by  many  desirable  consequences,  worthy  the  study 
.of  those  whom  God  has  made,  and  we  are  so  happy  to 
enjoy,  as  the  nursing  fathers  of  our  churches." 

Upon  this  address  it  is  represented,  that  on  the  third 
of  June  last,  the  Council  voted,  "  that  the  synod  and  as- 
sembly proposed  in  this  memorial,  will  be  agreeable  to 
this  Board,  and  the  Ileverend  Ministers  are  desired  to 
take  their  own  time  for  the  said  assembly  ;  and  it  is 
earnestly  wished  the  issue  thereof  may  be  a  happy  re- 
formation in  all  the  articles  of  a  Christian  life,  among 
His  Majesty's  good  subjects  of  this  Province." 

That  this  resolution  was  sent  down  to  the  House  of 
Representatives  for  concurrence,  and  in  that  House,  June 
11,  1715,  it  was  read  and  referred  to  the  next  session, 
for  further  consideration. 

That  this  resolution1  of  the  House  of  Representatives, 
was  sent  up  to  the  Council  for  their  concurrence,  and 
in  Council,  June  19,  1725,  read  and  concurred;  and 
the  Lieutenant-Governor  subscribed  his  consent  thereto. 

It  appears,  that  against  this  application  of  the  Conven- 
tion of  ministers,  for  a  synod,  a  memorial  was  presented 
by  Timothy  Cutler  and  Samuel  Myles,  Ministers  of  the 
Established  Church  of  England,  to  the  Lieutenant-Gov- 
ernor, Council  and  House  of  Representatives,  in  General 
Court  assembled,  a  copy  of  which  is  hereunto  annexed, 


48  OPINIONS  OF  EMINENT  LAWYERS. 

and  contains  several  reasons  against  the  address  of  the 
Convention  of  ministers. 

Upon  this  memorial,  the  Council,  on  the  22d  of  June, 
1725,  resolved,  that  it  contained  an  indecent  reflection 
bn  the  proceedings  of  that  Board,  with  several  ground- 
less insinuations;  and  voted  that  it  should  be  dismissed, 
to  which  resolution  the  House  of  Representatives 
agreed. 

As   to   the    questions    contained    in    Mr.   Delafaye's 
letter,  we  beg  leave  to  submit  our  thoughts  upon  them,  • 
to  your  Excellencies'  consideration,  separately  and  dis- 
tinctly. 

The  first  question  is :  Whether  such  pastors  and  mes- 
sengers have  any  power  to  meet  in  a  synod,  without 
the  King's  license. 

In  order  to  form  an  opinion  upon  this  point,  we  hare 
perused  the  Charter,  which  is  the  fundamental  Constitu- 
tion of  this  Province,  and  have  looked  into  their  printed 
Acts  of  Assembly,  as  far  as  the  year  1722. 

The  Charter  bears  date  7°  Octobris,  3°  Will,  et  Marine, 
A.  D.  1691,  and  recites  two  former  Charters,  one  granted 
3  Nov.  18  Jac.  I.  and  the  other  4  Mar.  4  Car.  I.,  which 
was  vacated,  by  judgment  upon  a  scire -foe.,  in  Trinity 
term  1684.  In  this  Charter,  nothing  is  contained,  tend- 
ing to  the  establishment  of  any  kind  of  church  govern- 
ment or  ecclesiastical  authority  in  this  colony,  but  there 
is  the  following  clause  :  For  the  greater  ease  and  encour- 
agement of  our  loving  subjects  inhabiting  our  said  Pro- 
vince or  Territory  of  Massachusetts  Bay,  and  of  such  as 
shall  come  to  inhabit  there,  we  do,  by  these  presents, 
for  us,  our  heirs  and  successors,  grant,  establish  and  or- 
dain that  forever  hereafter  there  shall  be  a  liberty  of 
conscience  allowed  in  the  worship  of  God  to  all  Chris- 


THE  KING'S    PREROGATIVE  ABROAD.  49 

tians  (except  papists)  inhabiting,  or  which  shall  inhabit 
or  be  resident  within  our  said  Province  or  Territory. 

By  the  power  given  by  this  Charter  to  the  General 
Court  or  Assembly  to  make  laws  and  impose  taxes,  they 
are  authorized  to  dispose  of  matters  and  things,  whereby 
the  subjects,  inhabitants  of  the  said  Province,  may  be 
religiously,  peaceably  and  civilly  governed,  protected  and 
defended,  so  as  their  good  life  and  orderly  conversation, 
may  bring  the  Indian  natives  of  the  country  to  the 
knowledge  and  obedience  of  the  only  true  God  and  Sa- 
vior of  mankind,  and  the  Christian  faith,  which  King 
Charles  I.,  in  his  said  letters  patent,  declared  was  his 
royal  intention,  and  the  adventurers'  free  profession  to 
be  the  principal  end  of  the  said  plantation  ;  and  for  the 
better  maintaining  liberty  of  conscience  thereby  granted 
to  all  persons,  at  any  time  being  and  residing  within  the 
said  Province  or  Territory. 

In  the  Acts  of  Assembly,  we  find  nothing  relating  to 
ecclesiastical  authority  ;  but  there  are  some  Acts  direct- 
ing that  every  town  shall  be  provided  of  one  or  more 
able,  learned  and  orthodox  minister  or  ministers,  without 
defining  what  they  intend  by  that  description,  and 
there  are  other  Acts,  appointing  methods  for  maintaining 
them; 

And  in  the  second  year  of  His  Majesty's  reign,  an  Act 
passed,  whereby  it  is  enacted,  that  upon  representation 
made  to  the  General  Court  or  Assembly,  that  any  town 
or  district  is  destitute  of  a  minister,  qualified  as  by  law 
is  provided,  or  do  neglect  to  make  due  provision  for  the 
support  of  their  minister,  the  General  Assembly  shall 
provide  and  send  an  able,  learned,  orthodox  minister,  of 
good  conversation,  being  first  recommended  by  three  or 


50  OPINIONS  OF  EMINENT  LAWYERS. 

more  of  the  settled  ordained  ministers,  or  may  lay  a  tax 
for  the  maintenance  of  the  minister. 

From  these  letters  patent  and  laws,  we  cannot  collect 
that  there  is  any  regular  establishment  of  a  national  or 
provincial  church  in  this  colony,  so  as  to  warrant  the 
holding  of  convocations  or  synods  of  the  clergy  ;  but  if 
such  synods  might  be  holden,  yet  we  take  it  to  be  clear, 
in  point  of  law,  that  His  Majesty's  supremacy  in  eccle- 
.siastical  affairs,  being  a  branch  of  his  prerogative,  does 
take  place  in  the  plantations,  and  that  synods  cannot 
be  held,  nor  is  it  lawful  for  the  clergy  to  assemble  as  in  a 
synod,  without  his  royal  license. 

The  second  question  is  :  How  far  His  Majesty's  prerog- 
ative may  be  concerned,  in  which  an  application,  not  to 
the  Lieutenant-Governor,  as  representing  His  Majesty's 
person,  but  to  him  and  the  Council  and  House  of  Rep- 
resentatives 1 

We  conceive  such  application  to  be  a  contempt  of  His 
Majesty's  prerogative,  as  it  is  a  public  acknowledgment, 
that  that  power  resides  in  the  legislative  body  of  the 
Province,  which  by  law  is  vested  only  in  His  Majesty ; 
and  the  Governor,  Council  and  Assembly  intermeddling 
therein,  was  an  invasion  of  his  royal  authority,  which  it 
was  the  particular  duty  of  the  Governor  to  have  with- 
stood and  rejected. 

The  next  question  is:  Whether  the  consent  of  the  Coun- 
cil and  House  of  Representatives  be  a  sufficient  author- 
ity for  their  holding  a  synod  1 

We  are  of  opinion  such  consent  will  not  be  a  sufficient 
authority ;  but  we  beg  leave  to  observe,  that  it  does  not 
appear,  by  the  papers  transmitted  to  us,  that  the  Council 
and  Assembly  have  given  their  consent  thereto,  but  that 


THE  KING'S  PREROGATIVE  ABROAD.          51 

the  House  of  Representatives,  upon  reading  the  resolu- 
tion of  the  Council,  adjourned  the  further  consideration 
thereof  till  the  next  session,  to  which  resolution  of  ad- 
journment, the  Council  concurred  and  the  Governor  sub- 
scribed his  consent. 

The  next  question  is  :  If  this  pretended  synod  should 
be  actually  sitting,  when  the  Lords  Justices'  directions 
in  this  matter  are  received  by  the  Lieutenant-Governor, 
what  can  be  done  to  put  an  end  to  their  meeting  ? 

We  humbly  apprehend,  that  in  case  such  synod  should 
be  actually  sitting,  yet  the  Lieutenaut-Governor,  by  or- 
der from  His  Majesty  or  your  Excellencies,  may  cause 
them  to  cease  their  meeting ;  and  that  for  this  purpose  it 
may  be  proper  that  he  should  be  directed  to  signify  to 
them,  that  their  assembly  is  against  law,  and  a  contempt 
of  His  Majesty's  prerogative,  and  that  they  do  forbear  to 
meet  any  more  ;  and  if,  notwithstanding  that,  they  shall 
continue  to  hold  their  assembly,  that  the  principal  ac- 
tors therein  be  prosecuted,  by  information,  for  a  misde- 
meanor, But  we  apprehend  no  formal  act  should  be 
done  to  dissolve  them,  because  that  may  imply  that  they 
had  a  right  to  assemble. 

The  principal  difficulty  in  this  case  will  be,  if  there 
should  be  an  Act  of  the  General  Court  or  Assembly  to 
warrant  their  meeting.  And  we  conceive,  that  if  such 
Act  should  pass  in  the  nature  only  of  the  resolution 
above-mentioned,  it  will  have  no  effect;  but  if  it  should 
have  the  regular  form  of  a  law,  it  will  admit  of  great 
doubts,  whether  it  will  be  agreeable  to  the  powers 
granted  by  the  Charter,  and  therefore,  we  humbly  ap- 
prehend, it  will  be  fit  for  His  Majesty  to  disallow  it. 
But  it  is  difficult  to  give  an  opinion  upon  the  effect 


52  OPINIONS  OF  EMINENT  LAWYERS. 

and  consequence  of  such  an  Act,  without  seeing  the  Act 
itself. 

The  last  question  is  :  What  authority  those  ministers 
have  to  meet  in  ar  General  Convention,  and  being  so  as- 
sembled, to  make  and  present  addresses,  or  to  do  any 
other  public  act  ? 

We  apprehend  that  such  meeting  is  not  unlawful,  pro- 
vided they  do  not  take  upon  them  to  do  any  authorita- 
tive act,  being  only  a  voluntary  society  ;  and  they  may 
lawfully  make  addresses,  either  to  the  Crown  or  to  the 
General  Court  or  Assembly,  in  case  the  subject  matter 
of  such  addresses  be  lawful. 

It  being  taken  notice  of  in  the  address  of  the  General 
Convention  of  Ministers,  that  such  a  synod  as  is  now 
desired,  was  holden  forty-five  years  ago ;  we  cannot  help 
observing  to  your  Excellencies,  that  this  computation 
falls  in  with  the  year  1680,  and  that  the  former  Char- 
ter, upon  which  the  government  of  this  Province  de- 
pended, was  repealed  by  scire  facias,  in  the  year  1684, 
and  the  new  Charter  granted  in  the  year  1691 ;  from 
whence  it  appears,  that  such  Synod  or  Assembly,  was 
holden  a  short  time  before  the  repealing  of  their  old 
Charter  ;  but  none  since  the  granting  of  the  new  one. 

All  which  is  .humbly  submitted  to  your  Excellencies' 
great  wisdom. 

September  29,  1725,  P.  YORKE. 

C.  WEARG, 


THE  KING'S  PREROGATIVE  ABROAD.          53 

(4.)  The  opinion  of  Mr.  West,  in  1719,  on  the  Kincjs 
right  to  present  to  vacant  benefices  in  Virginia. 

[Copy  of  an  Act  passed  in  the  General  Assembly  of 
Virginia,  the  23d  March,  1662,  upon  which  a  right  of 
patronage  is  pretended  to  be  established  in  the  ves- 
tries here.] 

Ministers  to  be  inducted. 

That  for  the  preservation  of  purity,  and  unity  of  doc- 
trine and  discipline  in  the  Church,  and  the  right  admin- 
istration of  the  sacraments,  no  ministers  be  admitted  to 
officiate  in  this  country,  but  such  as  shall  produce  to  the 
Governor,  a  testimonial  that  he  hath  received  his  ordi- 
nation from  some  Bishop  in  England,  and  shall  then 
subscribe  to  be  conformable  to  the  orders  and  Constitu- 
tions of  the  Church  of  England,  and  the  Laws  there  es- 
tablished, upon  which  the  Governor  is  hereby  requested 
to  induct  the  said  minister  into  any  parish,  that  shall 
make  presentation  of  him ;  and  if  any  other  person,  pre- 
tending himself  a  minister,  shall,  contrary  to  this  act, 
presume  to  teach  or  preach  publicly  or  privately,  the 
Governor  and  Council  are  hereby  desired  and  empow- 
ered to  suspend  and  silence  the  person  so  offending,  and 
upon  his  obstinate  persistence,  to  compel  him  to  depart 
the  country  with  the  first  convenience,  as  it  hath  been 
formerly  provided  by  the  77th  Act,  made  at  James  City, 
the  2d  of  March,  1642. 

Vestries  appointed. 

That  for  the  making  and  proportioning  of  the  levies 
and  assessments  for  building  and  repairing  the  churches 
and  chapels,  provision  for  the  poor,  maintenance  of  the 
minister,  and  such  other  necessary  uses,  anxl  for  the 
more  orderly  managing  all  parochial  affairs ;  be  it  enact-- 


&4  OPINIONS  OF  EMINENT  LAWYERS. 

ed,  that  twelve  of  the  most  able  men  of  each  parish  be, 
by  the  major  part  of  the  said  parish,  chose  to  be  a  v-es- 
try,  out  of  which  number  the  minister  and  vestry  to 
make  choice  of  two  churchwardens  yearly,  so  in  case  of 
the  death  of  any  vestryman,  or  his  departure  out  of 
the  parish,  that  the  said  minister  and  vestry  make 
choice  of  another  to  supply  his  room ;  and  be  it  further 
enacted,  that  none  shall  be  admitted  to  be  of  the  ves- 
try that  doth  not  take  the  oaths  of  allegiance  and  su- 
premacy to  His  Majesty,  and  subscribe  to  be  .conformable 
to  the  doctrine  and  discipline  of  the  Church  of  England. 

[Copy  of  the  powers  granted  by  the  King  to  the  Gov- 
ernor  of   Virginia,  for   supplying   vacant   benefices. 
Clause  in  the  Governor's  Commission.] 
And  we  do  further  give  and  grant  unto  you,  full  power 
and  authority  to  collate  any  person  or  persons,  to  any 
churches,  chapels  or  other  ecclesiastical  benefices,  within 
our  said  colony,  as  often  as  the  same  shall  happen  to  be 
void. 

[Ninety-third  article  of  the  King's  instructions  to  the 

Governor.] 

You  are  not  to  prefer  any  minister  to  any  ecclesias- 
tical benefice,  in  that  our  colony,  without  a  certificate 
from  the  Right  Reverend  Father  in  God,  the  Lord  Bishop 
of  London,  of  his  being  conformable  to  the  doctrine 
and  discipline  of  the  Church  of  England,  and  of  a  good 
life  and  conversation  ;  and  if  any  person  preferred  al- 
ready to  a  benefice,  shall  appear  to  you  to  give  scandal 
either  by  his  doctrine  or  manners,  you  are  to  use  the 
proper  and  usual  means  for  the  removal  of  him,  and  to 
supply  the  vacancy  in  such  manner  as  we  have  directed. 

N.  B,  The  power  of  collating  to  benefices  in  Virginia 


THE  KING'S  PREROGATIVE  ABROAD.  55 

is  expressly  excepted  out  of  the  Bishop  of  London's  ju* 
risdietion,  and  by  him  also  excepted  in  his  commission 
to  his  Commissary. 

All  ministers  bringing  letters  commendatory  from  the 
Bishop,  desiring  the  Governor  to  prefer  such  minister  or 
ministers  to  some  vacant  benefice,  and  accordingly  the 
Governor  sends  the  minister  so  recommended  (after 
having  seen  his  orders  and  testimonials)  to  such  vacant 
parish  as  he  thinks  fit ;  also,  it  is  to  be  noted,  that  every 
clergyman  coming  into  America,  receives  £20  out  of  the 
treasury,  as  the  King's  chaplains  employed  in  His  Ma- 
jesty's service, 

Qucere,  Whether,  by  the  power  aforesaid,  the  King 
doth  not  claim  the  right  of  collation  to  all  parishes  here, 

2d,  Whether  the  right  of  the  Crown  is  abridged  by 
the  act  entitled^  "Ministers  to  be  inducted  so  as  to  entitle 
the  vestries  to  a  right  of  patronage  "1  And  whether  the 
Governor  be  thereby  restrained  from  collating  to  vacant 
benefices,  or  granting  induction,  except  only  where  the 
vestry  present  their  clerk  ? 

3d,  If  the  vestry  have  the  right  of  patronage,  whether 
they  can  place  in  their  parish  any  minister,  without 
the  license  of  the  Governor,  who,  in  this  case  is  put  in 
the  place  of  the  ordinary  7  Or  can  they  remove  such 
minister  at  their  pleasure,  without  any  offence  proved 
before  the  competent  judge  having  cognizance  of  such 
offence  ? 

My  Lords  ; 

In  obedience  to  your  Lordships'  commands,-  I  have4 
perused  the  above  written  clauses,  and  considered  the 
questions  arising  thereupon  ;  and  since  the  prerogative 
of  the  Crown  cannot  be  lessened  or  taken  away  by  any 
general  Words  whatsoever,  but  only  by  express  -terms,  I 


66  OPINIONS  OF  EMINENT  LAWYERS. 

am  of  opinion  that,  notwithstanding  any  thing  contained 
in   them,    the   King's   prerogative   remains    untouched 
and  entire,  as  to  his  right  of  collating  to  vacant  ben- 
efices. RICH.  WEST. 
June  27>  1719. 

(5.)  Two  opinions  of  tlie  Attorney-General,  Nortkey, 
relative  to  the  clergy  of  Virginia. 

VIRGINIA,  latter  end  of  Nov.  1701. 

Memorandum  for- Colonel  Quarry,  concerning  the  pre- 
Cariousness  of  the  clergy.  His  Excellency  to  prevent 
the  abuses  in  this  matter,  which  are  these,  viz  : 

1st,  That  the  vestries  of  this  county  who  pretend  to 
have  the  right  of  presentation,  do  seldom  or  never  ac- 
tually present,  but  force  the  ministers  to  enter  into  year- 
ly agreements,  after  the  nature  of  chaplains  or  lecturers, 
to  serve  the  cure  for  so  much. 

2d,  That  upon  any  distaste  taken  up  against  the  min- 
ister when  his  year  is  out,  they  take  the  opportunity  to 
turn  him  out  of  his  living,  without  any  other  formality 
than  the  refusing  to  renew  the  agreement,  and  without 
any,  the  least  crime,  either  alleged  or  proved  against  him. 

For  remedy  whereof,  His  Excellency  desires  the 
opinion  of  my  Lords  of  Canterbury  and  London,  and  one 
or  two  of  the  best  civilians  :  Whether  the  King  or  the 
vestry,  are  the  patrons  of  the  several  churches,  (here  a 
a  copy  of  the  Virginia  law  about  vestries  is  to  be  pro- 
duced to  such  civilians)  ? 

If  the  vestries  are  patrons,  whether  His  Excellency, 
as  ordinary,  may  present  jure  devoluto  ? 

If  a  parish  scruple  in  admitting  a  minister  so  pre- 
sented :  And 

If  the. vestry,  or  any,  by  their  order,  shut  the  church 


THE  KING'S    PREROGATIVE  ABROAD.  57 

doors  upon  him,   what   is   the   punishment  of  such   a 
fact? 

Ministers  to  be  inducted. 

That  for  the  preservation  of  purity, -and  unity  of  doc- 
trine and  discipline  in  the  Church,  and  the  right  admin- 
istration of  the  sacrament,  no  minister  be  admitted  to 
officiate  in  this  country,  but  such  as  shall  produce  to 
the  Governor  a  testimonial  that  he  hath  received  his 
ordination  from  some  Bishop  in  England,  and  shall  then 
subscribe  to  be  conformable  to  the  orders  and  consti- 
tutions of  the  Church  of  England,  and  the  laws  there 
established  ;  upon  which  the  Governor  is  hereby  re- 
quested to  induct  the  said  minister  into  any  parish  that 
shall  make  presentation  of  him  ;  and  if  any  other  person, 
pretending  himself  a  minister,  shall,  contrary  to  this  Act, 
presume  to  teach  or  preach,  publicly  or  privately,  the 
Governor  and  Council  are  hereby  desired  and  empowered 
to  suspend  and  silence  the  person  so  offending,  and  upon 
his  obstinate  persistence,  to  compel  him  to  depart  the 
country  with  the  first  conveniency,  as  it  hath  been  for- 
merly provided  by  the  77th  Act,  made  at  James  City, 
the  2d  of  March,  1642. 

Whether,  if  a  parish  do  not  present  in  a  convenient 
time,  the  Commissary  or  the  Governor,  in  case  of  this 
neglect,  be  not  entitled  to  present  to  such  living  by 
lapse  ? 

Whether,  if  any  minister  be  elected  by  the  parish- 
ioners, and  allowed  by  them  to  serve  the  cure,  is  the 
,  Governor  thereby   enabled   to  give  induction   to   such 
curate  ? 

If  the  Governor  should  induct  any  minister  so  elected, 
can  the  parishioners  remove  him  1 

Provision  being  made  for  the  building  of  the  churches, 
9 


58  OPINIONS  OF  EMINENT  LAWYERS. 

and  for  the  setting  out  a  glebe  and  other  revenue,  for  the 
ministers  of  those  churches,  and  the  advowson  or  right 
of  presenting  to  those  churches  being  vested  in  the  pa- 
rishioners of  each  parish,  and  the  Governor  being  con- 
stituted in  the  place  of,  and  as  the  Ordinary  or  Bishop 
of  the  plantation,  to  admit  and  induct  presentees,  and 
to  punish  ministers  preaching  contrary  to  law,  by  the 
1st,  3d  and  4th  Acts  of  Maryland,  I  conceive  the  ad- 
vowson and  right  of  presentation  is  subject  to  the  Laws 
of  England,  there  being  no  express  law  of  that  planta- 
tion made  further  concerning  the  same  ;  therefore,  when 
the  parishioners  present,  and  their  clerk  is  inducted  by 
the  Governor,  who  is  so,  and  must  induct,  he  is  in  for 
his  life,  and  cannot  be  displaced  by  the  parishioners.  If 
the  parishioners  do  not  present  a  minister  to  the  Gov- 
ernor within  six  months  after  any  church  shall  become 
void,  the  Governor,  as  ordinary,  shall  and  may  collate  a 
clerk  to  such  church  by  lapse  ;  and  the  minister  he  shall 
so  collate  and  place  in  by  lapse,  shall  hold  that  church 
for  his  life.  In  inducting  ministers  by  the  Governor,  on 
the  presentation  of  the  parishes,  and  on  his  own  colla- 
tion by  lapse,  he  is  to  see  the  minister  be  qualified,  ac- 
cording as  the  Act  of  Maryland  requires  ;  and  in  case 
of  the  avoidance  of  any  church,  the  Governor,  as  or- 
dinary of  the  plantation,  is,  according  to  the  statute  of 
28th  Henry  VIII.  c.  11.  sec.  5,  to  appoint  a  minister  to 
officiate  till  the  parish  shall  present  one,  or  the  six 
months  be  lapsed ;  and  such  person  appointed  to  officiate 
on  the  vacancy,  is  to  be  paid  for  his  service  out  of  the 
profits  of  the  living,  and  the  next  incumbent  is  to  have 
the  overplus  of  the  profit  thereof,  from  the  time '  the 
church  became  void,  by  the  law  above  stated.  In  this 
case  no  minister  is  to  officiate  as  such,  though  not  as 


THE  KING'S    PREROGATIVE  ABROAD.  59 

incumbent,  till  he  hath  shewed  to  the  Governor,  that  he 
is  qualified  to  preach  according  to  the  law. 

April  7,  1702.  EDW.   NORTHEY. 

- 

Memorandum.  Colonel  Quarry  gave  Sir  Edward 
Northey  ten  guineas  for  the  above  report ;  but  there 
being  a  mistake  in  the  title  of  the  laws,  and  naming 
them  the  Act  of  Maryland  instead  of  Virginia,  I  sent  a 
copy  of  the  same  queries  by  the  Rev.  Mr.  Emanuel  Jones, 
to  get  his  further  report,  for  which  he  gave  him  ten 
guineas,  and  a  guinea  to  his  clerk,  upon  which  he  made 
the  following  report : 

On  consideration  of  the  laws  of  Virginia,  provision 
being  made  by  the  Act  entitled :  "  Church  to  be  built, 
or  Chapel  of  Ease,  for  the  building  a  church  in  each 
parish  "  ;  and  by  the  Act  entitled  :  "  Ministers  to  be  in- 
ducted," that  ministers  of  each  parish  shall  be  inducted 
on  the  presentation  of  the  parishioners  ;  and  the  church- 
wardens, being,  by  the  Act  entitled  "  Churchwardens," 
to  keep  the  church  in  repair,  and  provide  ornaments,  to 
collect  the  minister's  dues  ;  and  by  the  "Act  for  the  bet- 
ter support  and  maintenance  of  the  clergy,"  provision 
being  made  for  the  ministers  of  the  parishes ;  and  by 
the  said  Act  for  inducting  ministers,  the  Governor  being 
to  induct  the  minister  to  be  presented,  and  thereby  he 
being  constituted  ordinary,  and  as  Bishop  of  the  planta- 
tion, and  with  a  power  to  punish  ministers  preaching 
contrary  to  that  law,  I  am  of  the  opinion,  the  advow- 
sons,  and  the  right  of  presentation  to  the  churches,  is 
subject  to  the  Laws  of  England,  there  being  no  express 
law*  of  that  plantation  made  further  concerning  the 
same  ;  therefore,  when  the  parishioners  present  their 


60  OPINIONS  OP  EMINENT  LAWYERS. 

clerk,  and  he  is  inducted  by  the  Governor,  (who  is 
and  must  induct  on  the  presentation  of  the  parishion- 
ers,) the  incumbent  is  in  for  his  life,  and  cannot  be  dis- 
placed by  the  parishioners.  If  the  parishioners  (^p  not 
present  a  minister  to  the  Governor,  within  six  months 
after  any  church  shall  become  void,  the  Governor,  as 
ordinary,  shall  and  may  collate  a  clerk  to  such  church 
by  lapse,  and  his  collatee  shall  hold  the  church  for  his 
life  ;  if  the  parishioners  have  never  presented,  they  have 
a  reasonable  time  to  present  a  minister ;  but  if  they  will 
not  present,  being  required  so  to  do,  the  Governor  may 
also,  in  their  default,  collate  a  minister.  In  inducting 
ministers  by  the  Governor,  on  the  presentation  of  the 
parishes,  or  on  his  own  collation,  he  is  to  see  the  minis- 
ters be  qualified,  according  as  that  Act  for  inducting 
ministers  requires.  In  case  of  the  avoidance  of  any 
church,  the  Governor,  as  ordinary  of  the  plantation,  is, 
according  to  the  statute  of  28th  Henry  VIII.  cap.  11, 
sec.  5,  to  appoint  a  minister  to  officiate  till  the  parish 
shall  present  one,  or  the  six  months  be  lapsed ;  and  such 
person  appointed  to  officiate  in  the  vacancy,  is  to  be  paid 
for  his  service  out  of  the  profits  thereof,  from  the  time  the 
church  becomes  void  by  the  law  above  stated.  In  this  case 
no  minister  is  to  officiate  as  such,  till  he  hath  shewed  to 
the  Governor  he  is  qualified,  according  as  the  said  Act 
for  induction  directs  ;  if  the  vestry  do  not  levy  the  to- 
fyacco  for  the  minister,  the  Courts  there  must  decree  the 
same  to  be  levied.  EDW.  NORTHEY. 

July  29,  1703. 


THE   KING'S  PREROGATIVE  ABROAD.  61 

(6.)  The  same  Lawyer's  opinion  on  Popery  in  Mary- 
land. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  Jr.,  your  Secretary,  I  have  consid- 
ered of  the  annexed  extract  of  a  letter  from  Colonel 
Seymour,  Governor  of  Maryland,  relating  to  the  Jesuits 
and  papists  there  ;  and  the  extract  also  sent  me  of  the 
grant  of  the  Province  of  Maryland  to  the  Lord  Baltimore, 
relating  to  the  ecclesiastical  power ;  and  the  questions 
proposed  thereon  :  Whether  the  Laws  of  England  against 
Romish  priests,  are  in  force  in  the  plantations  ;  and 
whether  Her  Majesty  may  not  direct  Jesuits  or  Romish 
priests  to  be  turned  out  of  Maryland  ? 

And  as  to  the  said  clause  in  the  grant  of  the  Province  of 
Maryland  to  the  Lord  Baltimore,  relating  to  the  ecclesias- 
tical power,  I  am  of  opinion,  the  same  doth  not  give  him 
any  power  to  do  any  thing  contrary  to  the  ecclesiastical 
laws  of  England ;  but  he  hath  only  the  advowsons  of, 
and  power  to  erect  and  consecrate  churches,  and  such 
power  as  the  Bishop  of  Durham  had,  as  Earl  Palatine, 
in  his  County  Palatine,  who  was  subject  to  the  laws  of 
England  ;  and  the  consecrations  of  chapels  ought  to  be, 
as  in  England,  by  orthodox  ministers  only. 

As  to  the  question  :  Whether  the  laws  of  England, 
against  Romish  priests,  are  in  force  in  the  plantations ;  by 
the  statute  of  27mo.  of  Elizabeth,  cap.  2.,  every  Jesuit, 
seminary  priest,  or  other  such  priest,  deacon  or  religious, 
or  ecclesiastical  person,  born  within  this  realm  or  any 


62  OPINIONS    OP  EMINENT    LAWYERS. 

other  Her  Majesty's  dominions,  made,  ordained  or 
professed,  by  any  authority  or  jurisdiction,  derived,  chal- 
lenged or  pretended,  from  the  See  of  Rome,  who  shall 
come  into,  or  be,  or  remain  in  any  part  of  this  realm,  or 
any  other  of  her  Majesty's  dominions,  is  guilty  of  high 
treason.  It  is  plain,  that  law  extended  to  all  the  domin- 
ions the  Queen  had  when  it  was  made  ;  but  some  doubt 
hath  been  made,  whether  it  extendeth  to  dominions  ac- 
quired after,  as  the  plantations  have  been. 

By  the  statute  llmo.  William  III.,  for  preventing  the 
further  growth  of  popery,  it  is  provided  that,  if  any  po- 
pish bishop,  priest  or  Jesuit,  whatsoever,  shall  say  mass, 
or  exercise  any  other  part  of  the  office  or  function  of  a 
popish  bishop  or  priest,  within  this  realm,  or  the  do- 
minions thereunto  belonging,  such  person  being  thereof 
lawfully  convicted,  shall  be  adjudged  to  perpetual  im- 
prisonment, in  such  place  within  this  kingdom,  as  her 
Majesty,  by  the  advice  of  her  Privy  Council,  shall  ap- 
point. I  am  of  opinion  this  law  extends  to  the  planta- 
tions, they  being  dominions  belonging  to  the  realm  of 
England,  and  extends  to  all  priests,  foreigners  as  well  as 
natives. 

As  to  the  question,  whether  Her  Majesty  may  not  di- 
rect Jesuits  or  Romish  priests  to  be  turned  out  of  Mary- 
land, I  am  of  opinion,  if  the  Jesuits  or  priests  be  aliens, 
not  made  denizens  or  naturalized,  Her  Majesty  may,  by 
law,  compel  them  to  depart  Maryland ;  if  they  be  Her 
Majesty's  natural  born  subjects,  they  cannot  be  banished 
from  Her  Majesty's  dominions,  but  may  be  proceeded 
against  on  the  last  before-mentioned  law. 

October  18,  1705.  EDW.  NORTHEY. 


THE  KING'S   PREROGATIVE  ABROAD.  63 

(7.)  The  Bishop  of  London! s  observations  on  a  Laiv 
of  Virginia  for  the  suppression  of  Vice. 

SIR  :  I  have  carefully  perused  the  Act  that  is  come 
from  Virginia,  and  am  very  much  of  the  opinion  of  the 
Honorable  Board,  to  whom  my  most  humble  service  and 
excuse  for  not  waiting  upon  them.  I  do  think  it  is  a 
very  dangerous  thing  to  exempt  young  people,  from  fif- 
teen to  twenty-one,  from  being  liable  to  any  punishment 
for  their  immorality.  It  will  certainly  be  an  inducement 
to  them  to  take  it  for  an  indulgence  to  all  licentiousness 
during  that  time. 

That  part  of  the  Act,  likewise,  which  makes  the  cler- 
gy liable  to  the  same  punishment  with  the  lay  offenders, 
is  to  expose  them  in  the  last  degree,  especially,  since 
they  are  liable  to  be  corrected  by  ecclesiastical  cen- 
sures. H.  LONDON. 

FULHAM,  January  2,  1707. 
Mr.  Popple, 

Secretary  to  the  Commissioners 
for  Trade  and  Plantations. 

(8.)  The  Attorney-General,  Northers,  opinion  on  the 
granting  of  Letters  of  Administration  on  the  same  estate, 
both  in  England  and  in  the  Colonies. 

To  the  Right  Hon.,  the  Lords -Commissioners,  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  enclosed 
extract  of  Lord  Cornbury's  instructions,  and  of  his  let- 
ter relating  to  the  granting  letters  of  administration  ; 
and  your  Lordships  having  required  my  opinion  thereon, 


64  OPINIONS  OF  EMINENT  LAWYERS. 

and  what  may  be  fit  for  Her  Majesty  to  do  in  all  Ihe 
plantations  on  the  like  occasions  ;  and  I  do  most  humbly 
certify  to  your  Lordships,   that  by  law,  where  a  man 
dies  intestate  in  the  plantations,  having  a  personal  es- 
tate there,  and  also  any  personal  estate,  or  debts  owing, 
here  in  England,  the  right  of  granting  administration  be- 
longs to  the  Archbishop  of  Canterbury  ;  and  if  admin- 
istration be  granted,  in  the  plantations,  also,  (which  may 
be),  that  administrator  will  be  accountable  to  the  ad- 
ministrator in  England,  but  will  be  allowed  the  pay- 
ment of  just  debts,  if  paid  in  the  order  the  law  allows 
of,  that  is  to  say,  the  whole  personal  estate,  in  England 
and  the  plantations,  will  be  liable  to  all  the  intestate's 
debts  in  both  places,  and  out  of  the  whole,  first,  debts 
owing   to  Her  Majesty,  then  judgments,   statutes  and 
recognizances,  then   bonds,    then    debts,   without    spe- 
ciality, both  there  and  in  England,  are  to  be  satisfied ; 
and  the  administrator  in  the  plantations  will  not  be  al- 
lowed the  payment  of  any  debts,  without  speciality,  if 
there  be  debts  of  a  superior  nature  unsatisfied  in  Eng- 
land ;  for  every  administrator  is  bound  to  take  care  to 
apply  the  intestate's  assets  to  discharge  his  debts,  in  the 
order  the  law  directs,  and  it  matters  not  whether  the 
debts  were  contracted  in  England  or  the  plantations.    If 
there  be  debts  of  equal  nature  in  England  and  the  plan- 
tations, the    administrator    may   discharge    which    he 
pleases,  before  he  be  sued  for  any  'other  of  the  like  na- 
ture.    This,  indeed,  is  some  difficulty  on  administrators, 
but  it  is  no  more  there  than  in  England ;    and  attempts 
have  been  made  by  Acts  of  Assembly,  in  some  of  the 
plantations,  particularly,  as  I  remember,  in  Pennsylva- 
nia, to  appropriate  the  effects  in  the  plantations,  of  per- 
sons  dying  there,  to  the  discharging  debts  contracted 


THE  KING'S    PREROGATIVE  ABROAD.  65 

there  ;  but  those  Acts  have  been  repealed  here,  as  being 
prejudicial  to  this  kingdom.  I  am  also  of  opinion,  that 
when  the  letters  of  administration  arrive  at  the  planta- 
tions, under  the  seal  of  the  Prerogative  Court  of  Canter- 
bury, they  are  to  be  allowed  there,  and  the  authority  of 
the  administration  granted  in  the  plantations,  from  that 
time  ceases.  EDW.  NORTHEY. 

March,  1707. 

II.  The  King's  Civil  authority  abroad,  may  be  subdi- 
vided into  five  several  divisions  :  First,  of  the  King's 
rights  of  property. 

(1)  The  Lord  Chief-Justice  Holt's  opinion,  3<tf  June, 
1690,  that  the  King  might  take  away  the  Charter  of  Ma- 
ryland, (Lord  Baltimore's,)   it  being  in  a  case  of  ne- 
cessity* 
To  the  Marquis  of  Carmarthen,  the  President  of  the 

Council,  Earl  of  Danby, 
My  Lord ; 

I  think  it  had  been  better,  if  an  inquisition  had  been 
taken  and  the  forfeiture  committed  by  the  Lord  Balti- 
more, had  been  therein  found,  before  any  grant  be  made 
to  a  new  Governor ;  yet  since  there  is  none,  and  it  being 


*The  Privy  Council,  on  the  21st  of  August,  1690,  issued  an  order 
"  That  the  Attorney-General  do  forthwith  proceed,  by  scire  facias, 
against  the  Charter  of  Lord  Baltimore,  the  Proprietor  of  Maryland,  in 
order  to  vacate  the  same."  On  the  5th  of  February,  1690-1,  Lord 
Baltimore  was  heard,  by  counsel,  against  the  King's  appointment  of  a 
Governor  for  Maryland.  On  the  12th  of  February,  1690-1,  there 
issued  an  order  of  Council-,  that  the  draft  by  a  commission,  which  had 
been  prepared  by  the  Attorney  General,  and  approved  by  Lord  Chief- 
Justice  Holt,  constituting  Lionel  Copley  Governor-in-Chief  of  Mary- 
land, be  transmitted  to  Lord  Sydney,  the  Secretary  of  State,  for  the 
Queen's  signature. 

10 


66  OPINIONS  OP  EMINENT  LAWYERS. 

in  a  case  of  necessity,  I  think  the  King  may,  by  his  com- 
mission, constitute  a  Governor,  whose  authority  will  be 
legal,  though  he  must  be  responsible  to  Lord  Baltimore 
for  the  profits.  If  an  agreement  can  be  made  with  Lord 
Baltimore,  it  will  be  convenient  and  easy  for  the  Gov- 
ernor that  the  King  shall  appoint.  An  inquisition  may 
at  any  time  be  taken,  if  the  forfeiture  be  not  pardoned, 
of  which  there  is  some  doubt.  J.  HOLT. 

SERGEANT'S  INN,  June  3,  1690. 

(2.)  The  opinion  of  the  Attorney,  and  /Solicitor-Gen- 
eral, Nortkey  'and  Harcourt,  tliat  tlie  Queen,  having  a 
right  to  govern  all  her  people,  may  resume  a  Government 
under  a  Royal  Charter  that  had  been  abused. 

May  it  please  your  Majesty  ; 

In  humble  obedience  to  your  Majesty's  order  in  Coun- 
cil, we  have  considered  of  the  annexed  extract  of  a  rep- 
resentation from  the  Lords  Commissioners  of  Trade 
and  Plantations,  upon  letters  received  from  Colonel  Dud- 
ley, your  Majesty's  Governor  of  Massachusetts  Bay  and 
New  Hampshire,  complaining  of  great  inconveniences 
happening  to  him  in  that  government,  from  disorders  in 
Rhode  Island,  for  want  of  good  government  there ;  and 
also, '  upon  letters  received  from  the  Lord  Cornbury, 
your  Majesty's  Governor  of  New  York,  complaining  of 
like  inconveniences  from  disorders  in  the  Colony  of  Con- 
necticut, that  and  Rhode  Island  being  Charter  Govern- 
ments ;  and  also,  of  the  report  of  the  Attorney  and  Solici- 
tor-General of  the  late  King  William  and  Queen  Mary, 
made  in  July,  1694 ;  and  we  do  concur  with  them  in 
their  opinions  therein  mentioned,  that  upon  an  extraor- 
dinary exigency,  happening  through  the  default  or  neg- 
lect of  a  proprietor,  or  of  those  appointed  by  him,  or  their 


THE  KING'S  PREROGATIVE  ABROAD.  67 

inability  to  protect  or  defend  the  Province  under  their 
government,  and  the  inhabitants  thereof,  in  times  of  war 
or  imminent  danger,  your  Majesty  may  constitute  a  Gov- 
ernor of  such  Province  or  Colony,  as  well  for  the  civil 
as  military  part  of  government,  and  for  the  protection 
and  preservation  thereof,  and  of  your  Majesty's  subjects 
there,  with  this  addition  only,  that  as  to  the  civil  gov- 
ernment, such  Governor  is  not  to  alter  any  of  the  rules 
of  propriety,  or  methods  of  proceedings  in  civil  causes, 
established  pursuant  to  the  Charters  granted,  whereby 
the  proprietors  of  those  colonies  are  incorporated ;  on 
perusal  of  which  Charters,  we  do  not  find  any  clauses 
that  can  exclude  your  Majesty  (who  has  a  right  to  gov- 
ern all  your  subjects,)  from-  naming  a  Governor  on  your 
Majesty's  behalf,  for  those  colonies  at  all  times. 

EDW.  NORTHEY. 

SIM.  HARCOURT. 

(3.)  The  opinion  of  the  Attorney-General,  Northey, 
on  the  Queen's  prerogative  to  receive  a  surrender  of  the 
Pennsylvania  Charter. 

To  the  Right  Honorable  Robert,  Earl  of  Oxford,  and 
Earl  Mortimer,  Lord  High  Treasurer  of  Great  Bri- 
tain. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Harley*  I  have  considered  the  report  of 
the  Lords  Commissioners  of  Trade  and  Plantations, 
upon  the  "memorial  of  William  Penn,  Esq.,  Proprietor 
and  Governor  of  Pennsylvania,  proposing  to  surrender 
to  Her  Majesty  the  powers  of  government  wherewith  he 
is  invested  ;  and  I  have  also  perused  the  grant  of  that 
government  to  him  by  King  Charles  the  Second,  with 


68  OPINIONS  OF  EMINENT  LAWYERS. 

other  deeds  relating  to  Mr.  Penn's  title  thereto,  and  to 
the  government  of  the  tract  of  land  on  Delaware  River 
and  Bay,  now  called  the  town  or  colony  of  Newcastle, 
alias  Delaware  ;  and  he  has  made  out  to  me  his  title 
thereto  ;  and,  according  to  your  Lordships'  commands,  I 
have  prepared  a  draft  of  a  surrender  of  those  powers 
from  Mr.  Penn  and  others,  in  whom  the  legal  estate  is, 
under  him,  to  Her  Majesty,  reserving  to  Mr.  Penn  his 
right  to  the  soil  of  those  colonies.  In  the  letters  patent 
of  King  Charles  the  Second,  there  are  granted  to  Mr. 
Penn  all  mines  of  gold  and  silver  in  Pennsylvania,  which, 
he  says,  he  cannot  surrender  to  the  Crown,  having  made 
several  grants  thereof  to  several  people,  which  are  not 
in  his  power ;  and  therefore  the  surrender  of  them  is  not 
in  the  draft  prepared,  although,  if  it  be  insisted  on,  he 
may  surrender  and  assign  what  is  not  granted. 

There  is,  likewise,  an  instrument  prepared  for  Her 
Majesty's  accepting  the  said  surrender ;  and  in  it  Mr. 
Penn  is  an  humble  suitor  to  her  Majesty,  that  she  would 
be  pleased  thereby  to  declare  that  she  will  take  the  peo- 
ple of  his  persuasion,  as  well  as  the  other  inhabitants  of 
those  colonies,  in  Her  Majesty's  protection.  I  do  not 
observe  that  there  is  any  provision  made  for  the  support 
of  the  government  there,  by  any  act  of  Assembly  or 
otherwise,  without  which  the  government  will  be  a 
charge  to  Her  Majesty ;  but  the  Council  of  Trade  and 
Plantations,  in  their  report,  have^represented  that  Mr. 
Penn  affirms,  he  does  not  doubt  but  the  Assembly  will 
readily  make  provision  for  the  same,  and  he  acquaints 
me  that  the  fines  and  forfeitures  there,  which  have  been 
and  may  be  applied  hereto,  are  considerable. 

EDW.  NORTHEY. 
February  25,  1711-12. 


THE  KING'S  PREROGATIVE  ABROAD.          69 

(4.)  The  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral Ryder,  and  Muway,  on  the  King1  s  prerogative  to  re- 
ceive the  resignation  of  the  Charter  of  Georgia,  and  to 
establish  a  Royal  Government. 

To  the  Right  Honorable,  the  Lords  of  the  Committee  of 

Council  for  plantation  affairs. 
May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  order  of  the  19th 
of  December  last,  setting  forth  that  His  Majesty  was 
pleased,  by  his  order  in  Council  of  the  13th  of  May 
last,  to  refer  unto  your  Lordships  the  memorial  of  the 
Trustees  for  establishing  the  colony  of  Georgia,  in 
America,  setting  forth  that  His  Majesty  was  pleased,  by 
his  royal  Charter,  dated  the  9th  of  June,  1732,  to  make, 
erect  and  create  the  Colony  of  Georgia,  and  to  consti- 
tute thS  memorialists  to  be  one  body  politic  and  corpo- 
rate, for  establishing  the  said  Colony,  and  to  grant  them 
power  to  elect  their  own  successors  forever ;  and  also,  to 
vest  in  them  and  their  successors,  forever,  seven  undi- 
vided parts  of  all  the  lands  therein  particularly  des- 
cribed, as  trustees  for  granting  the  same  to  such  of  His 
Majesty's  indigent  subjects,  and  persecuted  foreign  Pro- 
testants, as  should  desire  to  inhabit  and  reside  there,  and 
the  powers  of  government  over  the  said  Colony  were 
thereby  vested  in  them  for  the  term  of  twTenty-one 
years  ;  a'nd  further,  setting  forth  (amongst  other  things,) 
the  several  steps  they  have  taken  from  time  to  time,  for 
the  peopling,  settling  and  establishing  the  said  Colony, 
together  with  the  present  state  and  condition  thereof; 
but  that,  as  the  said  term  of  government  will  expire  so 
soon  as  the  9th  of  June  1753,  (though  the  power  of 
granting  lands  is  vested  in  them  forever,)  they  humbly 


70  OPINIONS  OP  EMINENT  LAWYERS. 

pray  that  proper  means  may  be  soon  provided  for  put- 
ting ,the  government  of  the  Colony  on  a  more  sure  foun- 
dation than  it  is  at  present,  through  the  uncertainty  of 
the  memorialists  being  enabled  to  support  it,  lest  so 
great  a  misfortune  should  happen  as  the  immediate  de- 
sertion and  loss  of  this  important  Colony  ;  and  that  your 
Lordships  had,  that  day,  proceeded  to  take  the  said  me- 
morial into  your  consideration,  and  being  informed  that 
a  committee  of  the  said  trustees  was  attending,  and  had 
some  proposals  to  offer  to  your  Lordships  in  addition  to 
the  foregoing  memorial,  they  were  called  in,  and  the  fol- 
lowing proposal  was  delivered  by  them  to  your  Lord- 
ships, viz :  "  We,  whose  names  are  hereunder  written, 
being  a  Committee  appointed  by  the  Common  Council  of 
the  trustees,  for  establishing  the  Colony  of  Georgia,  in 
America,  and  fully  authorized  by  them,  do  hereby  sig- 
nify, that  we  are  ready  and  willing  to  make  an  Absolute 
surrender  of  all  the  powers,  rights  and  trusts  vested  in 
the  said  trustees  by  His  Majesty's  Charter,  bearing  date 
the  9th  day  of  June  1732,  without  any  .conditions  or  lim- 
itations ;  humbly  recommending  the  rights  and  privileges 
of  the  inhabitants  of  the  said  Colony  to  His  Majesty's 
most  gracious  protection. 

"  December  19,  1751.  SHAFTSBURY, 

ROBERT  TRACEY, 
JOHN  FREDERICK, 
SAML.  LLOYD, 
EDWARD  HOOPER." 

Which  being  taken  into  consideration,  your  Lordships 
were  thereby  pleased  to  refer  the  said  proposal  to  us  to 
consider  thereof,  and  report  to  your  Lordships,  in  what 
manner  the  same  may  be  most  effectually  carried  into 
execution. 


THE  KING  S  PREROGATIVE  ABROAD.          71 

We  have  considered  the  said  proposal,  and  perused 
the  said  Charter  of  the  9th  of  June  1732,  and  the  grant 
from  Lord  Carteret  of  the  same  year,  and  find  that,  by 
the  Charter,  the  Colony  of  Georgia  was  made  a  separate 
Province,  to  be  governed  by  its  own  laws,  and  not  by  the 
law  or  government  of  South  Carolina. 

That  the  memorialists  were  thereby  made  a  corporate 
body,  with  perpetual  succession,  and  that  seven-eighths 
of  the  lands  there  were  granted  to  them  forever,  to  be 
held  of  the  Crown,  at  the  rents  therein  mentioned,  with 
power  for  them,  by  their  Common  Council  named,  and 
to  be  named,  according  to  the  direction  of  the  Charter, 
under  their  common  seal,  to  distribute  and  convey  por- 
tions of  such  lands  to  such  subjects,  natural  born  or  den- 
izens or  others,  that  shall  be  willing  to  become  subjects 
on  such  terms,  and  for  such  estates,  and  on  such  con- 
ditions as  the  same  can  be  lawfully  granted,  and  as 
to  the  Common  Council  shall  seem  fit  ;  and  that  for 
the  term  of  twenty-one  years  the  memorialists  should 
have  power  of  making  such  laws,  and  appointing  gov- 
ernors and  officers  as  they  judge  proper.  We  find  also, 
by  the  Lord  Carteret's  said  grant,  his  one-eighth  of  the 
lands  was  vested  in  the  same  trustees  on  the  same 
trusts.  In  consequence  of  those  grants,  we  are  humbly 
of  opinion,  that  the  memorialists  have  sufficient  power 
to  make  such  surrender  and  grant  as  is  proposed. 

The  proper  method  of  doing  this,  will  be,  as  we  hum- 
bly conceive,  for  the  trustees,  with  the  privity  and  by 
the  direction  of  the  Common  Council,  to  execute  a  deed 
of  surrender  enrolled  under  their  common  seal,  and 
thereby  to  surrender  to  His  Majesty  their  said  Charter, 
and  all  the  powers,  jurisdictions,  franchises  and  privi- 
leges therein  conveyed  to  them,  and  thereby  to  grant  all 


72  OPINIONS  OF  EMINENT  LAWYERS. 

their  lands  and  territories  to  His  Majesty,  as  well  the 
one-eighth  derived  from  Lord  Carteret's  grant,  as  the 
seven-eighths  included  in  His  Majesty's  said  Charter,  but 
subject  to  such  estates  and  interests  as  the  inhabitants 
there  have  in  any  of  the  lands,  by  virtue  of  grants  from 
the  corporation. 

When  such  grant  and  surrender  shall  be  made,  we 
humbly  conceive  His  Majesty  will  have  both  the  gov- 
ernment of  the  Colony  in  his  own  hands,  and  the  lands 
and  territories  thereto  belonging,  subject  to  the  grants 
of  any  part  thereof  now  subsisting  ;  and  as  to  the  said 
one-eighth,  subject  to  the  quit  rents  reserved  in  the  Lord 
Carteret's  grant,  and  may  put  the  government  thereof 
on  such  a  foot  as  His  Majesty  shall,  in  his  great  wisdom, 
think  proper.  D.  RYDER. 

February  6,  1752.  W.  MURRAY. 

(5.)  The  opinion  of  the  Attorney-General  Norihey,  on 
the  surrender  of  the  Bahama  Charter. 

WHITEHALL,  Dec.  10,  1717. 

SIR  :  The  Lords  Commissioners  for  Trade  and  Planta- 
tions command  me  to  remind  you  of  my  letter  of  the 
21st  of  the  last  month,  which  was  to  acquaint  you,  that 
there  being  six  proprietors  of  the  Bahama  islands, 
whereof  two  are  minors,  the  other  four  have  executed  a 
deed  of  surrender  of  their  right  of  government  to  His 
Majesty,  and  to  desire  your  immediate  opinion,  whether 
a  surrender  executed  by  four  out  of  six,  as  aforesaid,  be 
valid  and  effectual.  WM.  POPPLE. 

[The  Attorney-General's  report  upon  the  surrender  of 

the  Proprietors.] 

I  am  opinion,  that  a  surrender  by  four  where  six  are 
seized,  can  only  convey  and  extinguish  thereby,  four 


THE   KING'S  PREROGATIVE  ABROAD.  73 

parts  in  six  of  what  the  parties  enjoyed.  However,  His 
Majesty  being  entitled  under  four,  to  four  parts  of  the 
government,  which  is  entire,  he  may  execute  the  whole. 
And  I  do  not  know,  that  the  other  two  can  be  copart- 
ners with  his  Majesty  in  governing  ;  for  which  reason, 
and  that  there  might  not  be  an  extinguishment,  by  sur- 
render, I  apprehend,  as  this  case  is,  a  grant  to  the 
Crown  of  the  four  parts  might  be  more  proper. 

December  10,  1717.  EDW.  NORTHEY. 

(6.)  On  tJie  I£in<fs  RigJit  to  the  three  lower  Counties 
on  Delaware^  by  Attorney  and  Solicitor-General,  Nor- 
they,  and  Thompson. 

SIR  :  The  Lords  Commissioners  for  Trade  and  Planta- 
tions having,  by  your  letter  of  the  13th  February  last, 
required  our  opinion  on  the  petition  of  the  Earl  of  Suth- 
erland, praying  for  a  Charter  of  certain  lands  lying 
upon  Delaware  Bay,  in  America,  commonly  called  the 
Three  Lower  Counties,  whether  it  be  in  the  power  of 
the  Crown  to  dispose  of  those  lands  petitioned  for ;  which 
petition  had  been  referred  to  their  Lordships  by  His 
Majesty  ;  and  His  Majesty  having  been  also  pleased  to 
refer  the  said  petition  to  us,  we  have  made  our  report 
thereon  to  His  Majesty,  and  enclosed,  have  sent  you  a 
copy  of  the  said  report,  which  may  serve  for  an  answer 
to  the  question  proposed  to  us  by  their  Lordships. 

October  28,  1717.  EDW.  NORTHEY, 

W.  THOMPSON. 

To  the  King's  most  excellent  Majesty. 

May  it  please  your  Majesty ; 

In  humble  obedience   to  your  Majesty's  commands, 
signified  to  your   Majesty's   Attorney-General,  by  the 
11 


74  OPINIONS  OF  EMINENT  LAWYERS. 

Lord  Viscount  Stanhope,  when  Secretary  of  State,  011 
the  memorial  of  the  Right  Honorable  John,  Earl  of 
Sutherland,  and  your  Majesty  having  been  pleased  also 
to  signify  your  commands  by  Mr.  Methueii,  when  Secre- 
tary of  State,  to  refer  the  said  memorial  to  your  Majes- 
ty's Solicitor-General,  we  have  jointly  considered  of  the 
said  memorial,  whereby  the  said  Earl  of  Sutherland 
represents  to  your  Majesty :  that  there  are  considerable 
arrears  due  to  him,  since  the  revolution,  amounting  to 
above  £20,000  ;  that  he  has  always  testified  his  great 
zeal  and  activity  for  the  Protestant  succession,  both  be- 
fore and  since  your  Majesty's  happy  accession  to  the 
throne,  and  given  singular  proofs  of  his  fidelity  and 
affection  to  your  Majesty,  by  his  services  in  North  Bri- 
tain during  the  rebellion  there ;  in  consideration  whereof 
your  Majesty  was  pleased  to  express  your  favorable  in- 
tentions of  gratifying  him  upon  any  occasion  :  where- 
fore, he  most  humbly  prays  your  Majesty  will  be  gra- 
ciously pleased  to  grant  him  a  Charter  of  certain  lands 
lying  upon  Delaware  Bay,  in  America,  commonly  called 
the  Three  Lower  Counties,  which  he  represents  he  is 
ready  to  prove  do  belong  to  the  Crown.  And  we  have 
given  notice  thereof  to  the  persons  concerned  for  Wil- 
liam Penn,  Esq.,  and  several  mortgagees  and  purchasers 
under  him ;  and  also  to  the  Lord  Baltimore,  who  sever- 
ally claim  title  to  the  said  lower  Counties,  being  called 
Newcastle,  Kent  and  Sussex.  And  we  have  heard  them 
and  their  agents,  thereupon,  and  we  do  most  humbly 
certify  your  Majesty,  that  the  said  William  Penn  is  en- 
titled, under  the  grant  of  King  Charles  the  Second,  to 
the  plantation  of  Pennsylvania  ;  but  that  these  counties 
are  not  included  in  such  grant,  and  his  title  to  Pennsyl- 
vania is  not  now  contested. 


THE  KING'S  PREROGATIVE  ABROAD.  75 

And  as  to  your  Majesty's  title,  which  the  Earl  of 
Sutherland  has  undertaken  to  make  out,  to  the  said 
Three  Lower  Counties,  he  has  insisted  that  the  same 
were  gained  by  conquest,  by  the  subjects  of  your  Majes- 
ty's predecessors,  or  granted  to  your  Majesty's  predeces- 
sors by  the  possessors  thereof,  and  that  thereby  your 
Majesty's  predecessors  became  entitled  to  the  same ;  for 
that  a  subject  of  the  Crown  could  not  make  foreign  ac- 
quisitions by  conquest,  but  for  the  benefit  of  the  Crown ; 
and  that  the  length  of  possession  will  be  no  bar  to 
the  Crown  ;  that  for  several  years-  past  Mr.  Penn  hath 
had  the  possession  of  the  said  Lower  Counties,  under  a 
pretense  of  a  grant  thereof  to  him,  made  in  the  year 
1682,  by  the  late  King  James,  when  Duke  of  York,  who 
then  had  the  possession  of  New  York  and  the  said  Three 
Lower  Counties ;  but  had  no  right  to  the  said  Lower 
Counties,  and  therefore  could  not  transfer  any  right  in 
the  same,  to  the  said  Mr.  Penn,  which  appears  •  for  that 
the  said  late  King,  afterwards,  when  Duke  of  York  in 
the  year  1683,  obtained  a  warrant  from  the  then  King, 
Charles  the  Second,  to  pass  a  patent  whereby  the  said 
Three  Lower  Counties  should  have  been  granted  to  the 
said  then  Duke  of  York,  and  a  copy  of  the  bill  to  pass 
into  a  grant  in  April  1683,  to  the  said  James  Duke  of 
York,  of  the  said  Three  Lower  Counties,  has  been  pro- 
duced by  the  said  Earl  of  Sutherland  ;  and  it  is  alleged 
the  same  was  never  passed  into  a  grant ;  and  that  if  the 
same  had  passed  into  a  grant,  it  would  not  have  made 
Mr.  Penn's  title  to  the  said  Three  Lower  Counties  to  fee 
good,  the  title  of  the  said  Mr.  Penn  under  i^lie  Duke  of 
York,  being  precedent  ,to  the  title  of  the  said  Duke  of 
York  ;  but  that  the  sa.me  did  remain  in  the  said  Duke 
of  York,  and  is,  consequently,  now  in  your  Majesty. 


76  OPINIONS  OP  EMINENT  LAWYERS. 

And  that  your  Majesty's  title  further  appears  ;  for  that, 
after,  in  May  1683,  when  the  then  Lord  Baltimore,  by 
petition,  opposed  the  passing  the  said  bill  under  the 
great  seal,  Mr.  Penn  then  appeared  against  the  said  Lord 
Baltimore,  as  agent  for  the  Crown,  and  not  on  behalf  of 
himself;  and  Mr.  Penn,  under  his  hand,  has  declared 
that  your  Majesty's  royal  approbation  and  allowance  of 
the  Deputy-Governor  of  Pennsylvania,  and  the  Three 
Lower  Counties  on  Delaware  River,  named  by  him, 
shall  not  be  construed  to  diminish  or  set  aside  the  right 
claimed  by  the  Crown,  to  the  said  Three  Lower  Coun- 
ties. 

Besides,  the  said  Earl  of  Sutherland  insists,  that  in 
the  grant  of  the  said  Duke  of  York,  in  1682,  to  Mr. 
Penn,  of  the  said  Three  Lower  Counties,  there  is  a  re- 
servation of  an  account  to  be  made  of  one  moiety  of  the 
profits  of  the  lands  thereby  granted,  touching  which,  no 
account  ljas  yet  been  rendered  by  Mr.  Penn;  and  that, 
therefore,  if  the  said  grant,  in  1682,  were  effectual,  the 
said  Mr.  Penn  is  yet  accountable  to  your  Majesty,  for 
the  moiety  of  all  the  profits  of  the  lands  so  granted, 
from  the  year  1682,  according  to  the  said  reservation ; 
and  that,  if  the  said  Earl  of  Sutherland  cannot,  by  your 
Majesty's  favor,  be  entitled  to  the  said  Three  Lower 
Counties,  he  humbly  prays  he  may  have  the  benefit  of 
the  said  account. 

In  answer  to  which,  on  the  behalf  of  Mr.  Penn's  mort- 
gagees and  other  purchasers  under  him,  it  hath  been 
alleged,  that  the  late  King  James  the  Second,  when 
Duke  of  York,  was  seized  in  fee  of  the  said  Three  Lower 
Counties;  and  as  one  argument  to  prove  such  seizin, 
they  have  produced  letters  patent,  dated  the  29th  day  of 
June,  26  Car.  II.,  whereby  his  said  late  Majesty,  King 


THE  KING'S    PREROGATIVE  ABROAD.  77 

Charles  the  Second,  granted  to  the  said  James,  late 
Duke  of  York,  his  heirs  and  assigns,  all  that  part  of  the 
main  land  of  New  England,  beginning  at  a  certain  place 
called  or  known  by  the  name  of  St.  Croix,  next  adjoin- 
ing to  New  Scotland,  in  America,  and  from  thence  ex- 
tending along  the  sea-coast  unto  a  certain  place  called 
Pemaquinue  or  TPemaquid,  and  so  up  the  river  thereof, 
to  the  further  head  of  the  same,  as  it  tendeth  north- 
ward, and  extending  from  the  river  of  Kinebequim,  and 
so  upwards  by  the  shortest  course,  to  the  river  Canada, 
northwards  ;  and  all  that  island  or  islands,  commonly 
called  by  the  several  name  or  names  of  Matewaicks  or 
Long  Island,  situate  and  being  towards  the  west  of  Cape 
Codd,  and  the  Narro  Higansetts,  abutting  upon  the  main 
land,  between  the  two  rivers  there  called  or  known,  by 
the  several  names  of  Connecticut  and  Hudson  River, 
together,  also,  with  the  said  river  called  Hudson's  River, 
and  all  the  lands  from  the  west  side  of  Connecticut 
River  to  the  east  side  of  Delaware  Bay,  and  also,  all 
those  several  islands  called  or  known  by  the  name  of 
Martin  Viniard  and  Nantacks,  otherwise  Nantukett,  to- 
gether with  all  the  lands,  islands,  soils,  rivers,  harbors, 
mines,  minerals,  quarries,  woods,  marshes,  waters,  lakes, 
fishings,  hawkings,  hunting  and  fowling,  and  all  other 
royalties,  profits,  commodities  and  hereditaments  to  the 
said  several  islands,  lands  and  premises  belonging  and 
appertaining,  with  their  and  every  of  their  appurte- 
nances ;  and  all  his  said  late  Majesty's  estate,  right, 
title  and  interest,  benefit,  advantage,  claim  and  demand, 
of,  in,  or  to  the  said  lands  and  premises,  or  any  part  or  par- 
cel thereof,  and.  the  reversion  and  reversions,  remainder 
and  remainders,  together  with  the  yearly  and  other 
rents,  revenues  and  profits  of  the  premises,  and  of  every 


78  OPINIONS  OP  EMINENT  LAWYERS. 

part  and  parcel  thereof;  at  and  uncler  the  yearly  rent  of 
forty  beaver  skins,  when  they  shall  be  lawfully  de- 
manded, or  within  ninety  days  after  such  demand,  made 
with  powers  of  government ;  within  the  descriptions  of 
which  grant  it  hath  been  agreed  by  both  parties,  that  the 
said  Three  Lower  Counties  are  not  contained. 

But,  on  the  behalf  of  Mr.  Penn,  it  hfith  been  insisted, 
that  by  the  general  words,  "  together  with  all  the  lands, 
islands,  soils,  rivers,  harbors,  &c.,  and  all  other  royalties, 
profits,  commodities  and  hereditaments  to  the  said  sev- 
eral islands,  lands  and  premises,  belonging  and  apper- 
taining, with  their  and  every  of  their  appurtenances," 
the  said  Three  Lower  Counties  did  pass  as  belonging  to 
the  premises  expressly  granted  by  the  said  letters  pa- 
tent ;  for  that  the  Three  Lower  Counties  were  enjoyed 
by  the  said  late  Duke  of  York,  together  with  New  York, 
which  was  granted  unto  the  said  late  Duke  of  York,  un- 
til he  granted  the  same  to  the  said  William  Penn  in 
1682,  by  the  grants  hereinafter  mentioned,  which  seems 
difficult  to  us  to  be  maintained,  since  the  abuttal  in  the 
said  letters  patent,  exclude  the  Three  Lower  Counties  ; 
but  they  presume  the  said  late  Duke  of  York  might 
have  some  other  grants  thereof,  which  Mr.  Penn  might 
give  an  account  of,  but  cannot,  being  under  a  lunacy. 
And  we  do  further  humbly  certify  your  Majesty,  that 
by  indenture  dated  the  24th  day  of  August,  1682,  made 
between  the  said  late  Duke  of  York  of  the  one  part,  and 
the  said  William  Penn  of  the  other  part,  the  said  late 
Duke  of  York,  for  the  considerations  therein  mentioned, 
did  bargain,  sell,  enfeoff  and  confirm  to  the  said  William 
Penn  and  his  heirs,  all  the  town  of  Newcastle,  oth- 
erwise called  Delaware,  and  all  that  tract  of  land  lying 
within  the  compass  or  circle  of  twelve  miles  about  the 


9 
THE  KING'S  PREROGATIVE  ABROAD.          79 

same,  situate,  lying  and  being  upon  the  river  Delaware, 
and  all  islands  in  the  said  river  Delaware ;  and  the 
said  river  and  soil  thereof,  lying  north  of  the  southern- 
most part  of  the  said  circle  of  twelve  miles,  about  the 
said  town ;  together  with  all  rents,  services,  royalties, 
franchises,  duties,  jurisdictions,  liberties  and  privileges 
'thereunto  belonging,  and  all  the  estate,  right,  title,  in- 
terest, powers,  property,  claim  and  demand  whatsoever, 
of  the  said  late  Duke,  of,  in  or  to  the  same,  or  to  any 
part  or  parcel  thereof,  at  and  under  the  yearly  rent  of 
five  shillings,  with  a  covenant  for  further  assurance  ; 
and  the  said  late  Duke  did  thereby  constitute  and  ap-- 
point  John  Moll  and  Ephriam  Harmon,  or  either  of 
them,  his  attorney,  with  full  power  for  him  and  in  his 
name  and  stead,  to  deliver  seizin  of  the  premises 
granted  by  the  said  last  recited  indenture,  to  the  said 
William  Penn,  and  his  heirs.  And  the  said  late  Duke 
of  York,  by  another  indenture  bearing  date  the  said 
24th  of  August  1682,  and  made  between  the  said  late 
Duke  of  York  of  the  one  part,  and  the  said  William 
Penn  of  the  other  part,  for  the  consideration  therein 
mentioned,  did  bargain,  sell,  enfeoff  and  confirm  unto 
the  said  William  Penn  and  his  heirs,  all  that  tract  of 
land  upon  Delaware  River  and  Bay,  beginning  twelve 
miles  south  from  the  town  of  Newcastle,  otherwise  called 
Delaware,  and  extending  south  to  the  Whore  Kills,  oth- 
erwise called  Cape  Henlopen ;  together  with  free  and  un- 
disturbed use  and  passage  into  and  out  of  all  harbors, 
bays,  waters,  •  rivers,  isles  and  inlets,  belonging  to  or 
leading  to  the  same ;  together  with  the  soil,  fields,  woods,, 
underwoods,  mountains,  hills,  fens,  isles,  lakes,  rivers, 
rivulets,  bays  and  inlets,  situate  in  or  belonging  unto  the 
limits  and  bounds  aforesaid ;  together  with  all  sorts  of 


1 
80  OPINIONS  OP  EMINENT  LAWYERS. 

minerals,  and  all  the  estate,  interest,  royalties,  fran- 
chises, powers,  privileges  and  immunities  whatsoever,  of 
the  said  Duke  of  York  therein,  or  in  or  unto  any  part 
or  parcel  thereof,  at  and  under  the  yearly  rent  of  one 
rose  ;  in  which  said  last-mentioned  indenture  is  contain- 
ed a  covenant,  on  the  part  of  the  said  William  Penn, 
his  heirs  or  assigns,  within  the  space  of  one  year  next 
ensuing  the  date  of  the  same  indenture,  to  erect  or 
cause  to  be  erected  and  set  up,  one  or  more  public  office 
or  offices  of  registry,  in  or  upon  the  said  last  bargained 
premises,  wherein  truly  and  faithfully  to  account,  set 
down  and  register,  all  and  all  manner  of  rents  and  other 
profits,  which  he  or  they,  or  any  of  them,  shall  by  any 
ways  or  means  make,  raise,  get  or  procure,  of,  in  or  out 
of  the  said  last  bargained  premises,  or  any  part  or  parcel 
thereof;  and  also,  at  the  feast  of  St.  Michael  the  Arch- 
angel, yearly  and  every  year,  shall  well  and  truly  yield, 
pay  and  deliver  unto  the  said  late  Duke  of  York,  his 
heirs  and  assigns,  one  full  moiety  of  all  and  all  manner 
of  rents,  issues  and  profits,  as  well  extraordinary  as  or- 
dinary, as  shall  be  made  or  raised  upon  or  by  reason  of  the 
premises,  or  any  part  thereof;  with  power  to  the  said  late 
Duke  of  York,  his  heirs  and  assigns,  in  case  the  same 
shall  be  in  arrear  twenty  days,  to  enter  in  and  upon 
the  same  premises,  or  any  part  thereof,  and  there  to  dis- 
train, and  the  distresses  to  detain,  until  payment  of  the 
said  moiety  and  arrears  thereof,  together  with  all  costs 
and  damages  for  the  same.  And  by  the  same  indenture, 
the  said  John  Moll  and  Ephriam  Harmon,  or  either  of 
them,  were  appointed  in  like  manner,  attorney  or  attor- 
nies,  to  deliver  seizin  of  the  last  bargained  premises  to 
the  said  William  Penn  and  his  heirs ;  both  which  said 
indentures  were  entered  in  the  office  of  records,  for  the 


THE  KING'S  PREROGATIVE  ABROAD.  81 

Province  of  New  York,  on  the  21st  November,  1682. 
Within  which  said  grants  the  said  Three  Lower  Counties 
are  contained,  but  the  covenant  to  account  extends  only 
to  what  is  included  in  the  last  recited  grant. 

That  by  an  order  by  the  Commander-in-chief  and 
Council  of  New  York,  dated  at  New  York  21st  of  No- 
vember, 1682,  reciting  the  said  two  recited  indentures, 
and  reciting  that  the  said  Commander  and  Council  were 
fully  satisfied  of  the  said  William  Penn's  right  to  the 
possession  and  enjoyment  of  the  premises,  had  therefore, 
thought  fit  and  necessary  to  signify  and  declare  the 
same,  to  the  several  justices,  magistrates  and  other  offi- 
cers at  Newcastle,  St.  Jones  Deale,  alias  Whore  Kill,  at 
Delaware,  or  within  any  of  the  bounds  and  limits  above 
mentioned,  to  prevent  any  doubt  or  trouble  that  might 
arise  ;  and  after  having  thanked  the  said  magistrates  for 
their  good  services,  in  their  several  offices  and  stations, 
during  the  time  they  remained  under  his  said  late  royal 
highness'  government,  they  declare  they  expected  no 
further  account,  than  that  they  should  readily  submit 
and  yield  all  due  obedience  and  conformity  to  the  pow- 
ers granted  to  the  said  William  Penn,  in  and  by  the 
said  indentures,  which  said  order  was,  the  25th  of 
October,  1701,  entered  in  the  Roll's  Office,  at  Phila- 
delphia. 

It  appears  by  the  affidavit  of  Thomas  Grey,  who 
swears  he  lived  in  Pennsylvania,  from  the  year  1699  to 
the  year  1707,  and  that  he  made  out  and  saw  many  pa- 
tents, or  grants  and  warrants,  whereby  considerable 
quantities  of  land  lying  in  the  said  Three  Lower  Coun- 
ties, which,  as  he  deposes,  are  esteemed  to  belong  to 
Pennsylvania,  were  granted  to  divers  persons  and  their 
heirs  ;  some  of  which  grants  or  warrants  were  signed 
12 


82  OPINIONS  OP  EMINENT  LAWYERS. 

by  the  said  William  Penn,  and  the  rest  by  his  agents  or 
commissioners,  and  all  sealed  with  the  seal  of  the 
said  Province  ;  and  .that  he  hath  seen  great  improve- 
ments in  building  and  planting,  by  persons  claiming  un- 
der such  grants.  That  many  of  the  said  inhabitants, 
who  were  reputed  to  have  settled  upon  lands  in  the  said 
Lower  Counties,  by  virtue  of  grants,  or  patents  and  war- 
rants, either  from  the  Swedes  or  Dutch,  when  the  said 
Counties  were  in  their  hands,  respectively,  or  from  4he 
Governor  of  New  York,  under  the  said  late  Duke  of  York, 
when  the  same  was  in  his  hands,  did,  upon  making 
their  accounts  up  of  quit-rents  due  from  them  to  the 
said  William  Penn,  for  their  lands,  accept  new  patents 
from  the  said  William  Penn,  or  his  agents,  and  have 
since  much  increased  their  improvements  thereof,  both 
in  building  and  planting.  That,  he  hath  seen  patents 
or  instruments  for  conveying  lands,  in  the  said  Lower 
Counties,  to  divers  of  the  ancient  inhabitants  thereof,  as 
well  from  the  Swedes  or  Dutch,  as  the  Governors  of  New 
York,  under  the  said  late  Duke,  as  also,  commissions  un- 
der the  hands  of  some  one  of  the  said  Governors  of  New 
York,  constituting  magistrates  and  officers  in  the  said 
Lower  Counties.  That,  he  believes,  that  the  patents  of 
land  in  the  said  Lower  Counties,  granted  by  the  said 
Governors  of  New  York,  were  registered  at  New  York, 
and  that,  if  search  were  made  in  the  Secretary's  office 
there,  the  same  would  appear  so  to  be.  That,  he  believes 
much  the  greatest  part  of  the  inhabitants  of  the  said 
Lower  Counties,  who  have  land  there,  hold  the  same  by 
title  under  Mr.  Penn,  and  that  several  who  hold  land 
there  by  other  title,  have  delivered  the  same  up,  and 
have  accepted  new  grants  from  Mr.  Penn.  And  it  also 
appears,  by  the  affirmation  of  Robert  Hiscox,  a  Quaker, 


THE  KING'S   PREROGATIVE  ABROAD.  83 

that  the  Naval  Store  Company,  in  Bristol,  have,  by  their 
agents,  made  several  purchases  of  the  said  William 
Peiin  of  3120  acres  of  land  in  the  County  of  Kent,  and 
the  said  company  hath  expended  for  purchasing  lands, 
building  thereon,  and  other  improvements,  and  in  carry- 
ing on  their  manufacture  for  raising  hemp,  upwards  of 
£2,000,  and  are,  by  their  articles,  obliged  to  lay  out 
£5,000,  of  which  the  said  £2,000  is  part,  and  that  he 
expects,  in  a  short  time,  the  greater  part  of  the  remain- 
ing £3,000  will  be  laid  out  in  the  management  and  car- 
rying on  the  said  manufacture ;  and  that  no  benefit  hath 
yet  accrued  to  the  said  Company,  for  the  money  so  ex- 
pended ;  and  that  he  believes  other  purchases  are  already 
made  for  the  use  of  the  said  Company, 

And  as  to  the  said  Earl  of  Sutherland's  objection,  that 
the  Duke  of  York,  in  1682,  had  no  title  to  the  Lower 
Counties,  and  therefore,  those  grants  then  made  to  Mr. 
Penn  were  void,  which  appears  by  a  copy  of  a  bill,  dated 
13th  of  April,  1683,  in  order  to  be  passed  into  a  grant 
of  the  said  Three  Lower  Counties  to  the  said  late  Duke  of 
York,  which  is  after  the  grant  by  the  Duke  of  York  to 
the  said  William  Penn,  but  never  passed  into  a  grant, 
&nd  which  bill  recites  a  surrender  of  certain  letters  pa- 
tent, bearing  date  22d  of  March  then  last  past,  (which 
grant  cannot  be  found)  of  the  town  of  Newcastle,  other- 
wise Delaware,  and  fort  thereunto  belonging,  lying  be- 
tween Maryland  and  New  Jersey,  in  America,  and  seve- 
ral other  lands,  tenements  and  hereditaments,  therein 
mentioned,  the  said  late  King,  Charles  the  Second,  for 
the  considerations  therein  mentioned,  did  grant  to  the 
said  late  Duke  of  York,  and  his  heirs,  all  that  the  town 
of  Newcastle,  otherwise  called  Delaware,  and  fort  there- 
in or  thereunto  belonging,  lying  between  Maryland  and 


84  OPINIONS    OF  EMINENT    LAWYERS. 

New  Jersey,  in  America ;  and  all  that  river  called  Dela- 
ware, and  soil  thereof,  and  all  islands  in  the  said  river  ; 
and  all  that  tract  of  land  upon  the  west  side  of  the  river 
and  bay  of  Delaware,  which  lieth  from  Schoolkill  Creek 
upon  the  said  river,  unto  Bombey's  Hook,  and   back- 
wards into  the  woods  so  far  as  the  Minqua's  country,  and 
from  Bombey's  Hook,  on  the  said  river  and  bay,  unto 
Cape  Henlopen,    now  -called    Cape  James,    being  the 
south  point  of  a  sea  warmet  inlet,  and  backwards  into 
the  woods  three  Indian  day's  journeys,  being  formerly 
the  claim  or  possession  of  the  Dutch,  (or  purchased  by 
them  of  the  natives,)  or  which  was  by  them  first  sur- 
rendered unto  his  said  late  Majesty's  Lieutenant-Gov- 
ernor,  Colonel  Niccols,  and  which  had  been  since  surren- 
dered unto  Sir  Edmond  Andros,  Lieutenarrt-Governor  of 
the  said  James,  Duke  of  York,  and  had  for  several  years 
been  in  his  possession,  with  the  free  use  and  continu- 
ance in,  and  passage  into  and  out  of  all  and  singular 
ports,  harbors,  bays,  rivers,  isles  and  inlets  belonging 
unto  or  leading  to  or  from  the  said  tract  of  land,  or  any 
part  or  parcel  thereof;  and  the  seas,  bays  and  rivers, 
and  soil  thereof,  bending  eastward  and  southward  on  the 
said  tract  of  land,  and  all  islands  therein ;   and  also  all 
the  soil,  lands,  fields,   woods,    underwoods,  mountains, 
hills,  fens,  swamps,  isles,  lakes,  rivers,  rivulets,  bays  and 
inlets,  situate  and  being  within  the  said  tract  of  land  ; 
and  any  of  the  limits  and  bounds  aforesaid,  together  with 
all  minerals,  quarries,  fishings,  hawkings,  huntings  and 
fowlings,  and  all  other  royalties,  privileges,  profits,  com- 
modities and  hereditaments  to  the  said  town,  fort,  tract 
of  land  and  premises,  or  to  any  or  either  of  them,  be- 
longing or  appertaining,  with  their  and  every  of  their 
appurtenances  in  America ;  and  all  his  said  late  Majes- 


THE  KING'S    PREROGATIVE  ABROAD.  85 

ty's  estate,  right,  title,  interest,  benefit,  advantage,  claim 
and  demand  whatsoever,  of,  in  or  to  the  said  town,  fort, 
tract  of  land  and  premises,  or  any  part  or  parcel  thereof, 
together  with  the  yearly  and  other  rents,  revenues  and 
profits  of  the  premises,  and  of  every  part  and  parcel 
thereof,  to  hold  to  the  said  Duke  of  York  and  his  heirs, 
at  and  under  the  yearly  rent  of  one  beaver  skin,  when 
demanded. 

On  the  behalf  of  Mr.  Penn,  it  is  alleged,  that  it  is 
probable  the  said  bill  in  1683  might  have  been  passed 
into  a  grant,  for  that  they  produced  from  the  Hanaper 
office,  where  entries  are  made  of  grants  that  pass  the 
Great  Seal,  a  certificate  of  an  entry  in  that  office,  in  the 
words  following,  viz  :  "  April  6th,  1683,  a  grant  to 
James  Duke-  of  York,  of  the  town  of  Newcastle,  alias 
Delaware,  situate  between  Maryland  and  New  Jersey,  in 
America,  to  him  and  his  heirs  forever,"  such  entries  not 
having  been  made  at  the  Hanaper  office,  but  where 
letters  patent  do  pass,  which  patent  might  happen  not 
to  be  enrolled,  as  it  is  not,  by  the  neglect  of  the  six  Clerk, 
called  the  Riding  Clerk,  whose  business  it  was  to  see  the 
same  enrolled. 

And  as  to  the  objection,  that  if  the  same  were  en- 
rolled, that  the  same  is  a  title  subsequent  to  the  grant 
to  Mr.  Penn,  and  that  Mr.  Penn  appeared  as  agent  for 
the  Crown  against  the  Lord  Baltimore,  they  do  humbly 
insist  that  Mr.  Penn  having  a  grant  then  so  lately  from 
the  said  late  Duke  of  York,  might  make  use  of  the 
name  of  the  said  Duke,  with  his  leave  in  trust,  for  the 
said  Mr.  Penn  and  his  heirs,  which  they  the  rather  appre- 
hend, for  that  the  possession  was  always  suffered  to  re- 
main with  the  said  William  Penn  ;  and  that  if  the  said 
grant  was  passed,  and  the  said  grant  was  in  trust  for  the 


86  OPINIONS  OF  EMINENT  LAWYERS. 

said  William  Penn,  the  same  extinguished  the  said  cove- 
nant of  Mr.  Penn  for  accounting  in  the  grant  to  him 
thereof. 

Besides,  in  the  said  last  grant  to  the  Duke  of  York, 
it  is  recited,  that  the  lands  were  formerly  the  claim 
and  possession  of  the  Dutch,  and  had  been  surrendered 
unto  the  Lieutenant-Governor  of  the  said  Duke  of  York, 
and  had  for  several  years  been  in  his  possession,  which 
might  enable  him  to  make  the  grants,  in  1682,  to  the 
said  Mr.  Penn. 

And,  on  the  behalf  of  the  purchaser's,  it  has  been  in- 
sisted, that  it  would  be  very  hard  to  put  them  to  any 
trouble  who  have  bought  under  the  title  and  enjoyment 
of  Mr.  Penn,  and  have  laid  out  great  sums  of  money  in 
improving  their  purchases. 

And  as  to  the  title  claimed  by  the  Lord  Baltimore, 
we  are  humbly  of  opinion,  that  the  same  has  already  re- 
ceived a  full  and  final  determination  ;  for  that,  31st  of 
May,  1683,  Richard  Burk,  gent.,  servant  to  Charles,  then 
Lord  Baltimore,  praying  that  the  said  bill  of  1683  might 
not  pass  the  Great  Seal,  until  His  then  Majesty  should 
be  satisfied  of  the  extent  of  the  letters  patent  formerly 
granted  to  Cecil,  Lord  Baltimore,  wherein  the  said  town 
and  adjacent  country  is  alleged  to  be  comprised ;  which 
said  petition  being  referred  to  the  then  Lords  Commis- 
sioners for  Trade  and  Plantations,  on  the  13th  of  No- 
vember, 1685,  their  Lordships  made  their  report,  where- 
in they  report  that :  "  Having  examined  the  matters  in 
difference  between  the  Lord  Baltimore  and  William 
Penn,  Esq.,  on  behalf  of  His  then  Majesty,  concerning  a 
tract  of  land  called  Delaware,  they  found  the  land  in- 
tended to  be  granted  to  Lord  Baltimore  was  only  lands 
uncultivated,  and  inhabited  by  savages ;  and  that  the 


THE  KING'S  PREROGATIVE  ABROAD.  87 

tract  of  land  then  in  dispute,  was  inhabited  and  planted 
by  Christians  at  and  before  the  date  of  the  Lord  Balti- 
more's patent,  as  it  had  ever  been  since,  to  that  time, 
and  continued  as  a  distinct  colony,  from  Maryland,  so 
that  their  Lordships  humbly  offered  their  opinion,  that 
for  avoiding  further  differences,  the  tract  of  land  lying 
between   the    river    and    the  eastern    sea,  on  the  one 
side,  and  Chesapeake  Bay  on  the  other,  be  divided  into 
equal  parts,  by  a  line  from  the  latitude  of  Cape  Henlo- 
pen  to  the  40th  degree  of  northern  latitude  ;  and  that 
one-half  thereof,  lying  towards  the  bay  of  Delaware  and 
the  eastern  sea,  be  adjudged  to  belong  to  his  Majesty, 
and  the  other  half  to  Lord  Baltimore ;"  Which  repor.t  his 
then  Majesty  was  pleased  to  approve  of,  and  to  order 
the  said  lands  to  be  divided  accordingly,  and  the  Lord 
Baltimore  and  William  Penn  required  to  yield  due  obe- 
dience thereunto ;  which  report  was  also  confirmed  the 
23d  of  June,  1709,  by  Her  late  Majesty,  Queen  Anne,  in 
Council ;  however,  this  petition,  on  behalf  of  the  Lord 
Baltimore,   is  a  very  great  argument  that  the  bill  of 
1683,  to  the  late  Duke  of  York,  never  passed  the  Great 
Seal,  as  on  Mr.  Penn's  behalf  is  supposed ;  for  that  it 
being  stopped,  as  must  be  presumed  in  that  petition  or 
grant,  after  that  matter  settled,  which  was  in  1685,  in 
the  reign  of  the  said  Duke,  when  King  of  England, 
could  not  pass  the  Great  Seal,   in   the   name  of  King 
Charles,  to  the  Duke  of  York,  then  being  King  of  Eng- 
land ;    but  the  entry  in  the  Hanaper  office  might  have 
been  made  when  the  Privy  Seal  was  brought  to  the 
Great  Seal,  to  be  passed  into  a  grant. 

On  the  whole  matter,  we  humbly  submit  it  to  your 
Majesty's  consideration,  whether  that  it  will  not  be  rea- 
sonable, that  your  Majesty's  title  should  be  established 


OPINIONS  OF  EMINENT  LAWYERS. 

by  the  Court  of  Chancery,  before  any  grant  should  be 
made  of  the  premises  ;  and  if  any  grant  should  be  made, 
we  most  humbly  submit  it  to  your  Majesty,  whether 
the  claims  of  purchasers  or  grantees  under  Mr.  Penn, 
who  have  improved  part  of  the  said  Three  Lower  Counties, 
should  not  be  established  ;  but  if  Mr.  Penn  should  have 
a  title  to  the  Three  Lower  Counties,  by  virtue  of  the 
two  grants  made  to  him  by  the  late  King  James,  in 
1682,  when  Duke  of  York,  we  have  not  received  any 
answer  why  he  should  not  account,  according  to  his  cov- 
enant, in  the  last  of  the  said  deeds,  for  the  moiety  of 
the  rents,  issues  and  profits  raised  by  virtue  of  that  grant. 

EDW.   NORTHEY. 
October  21,  1717.  WM.  THOMPSON. 

(7.)  Of  the  King's  authority  over  Guernsey  and  Jer- 
sey, by  the  Attorney  and  Solicitor,  Ryder  and  Strange. 

To   the  Right  Honorable,  the  Lords  of  the  Committee 
of  Council,  for  the  affairs  of  Guernsey  and  Jersey. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  order  of  the  21st  of 
July,  1736,  hereunto  annexed,  whereby  your  Lordships 
were  pleased  to  refer  the  memorial  and  papers  hereunto 
annexed,  to  His  Majesty's  late  Attorney  and  Solicitor- 
General,  to  consider  the  same,  and  report  their  opinion 
to  your  Lordships  upon  the  general  case  of  extents  from 
the  Exchequer,  and  of  the  process  from  the  Courts  of 
King's  Bench,  how  the  same  can  be  legally  executed,  in 
the  islands  of  Guernsey  and  Jersey,  and  if  not,  what 
other  remedy  is  left  to  the  Crown,  for  the  recovery  of 
their  debts  in  those  islands. 

We  have  considered  of  the  matters  so  referred,  and 


THE  KING'S  PREROGATIVE  ABROAD.          89 

are  humbly  of  opinion,  that  no  writ  of  extent  out  of  His 
Majesty's  Court  of  Exchequer  here,  nor  any  process 
from  the  Court  of  King's  Bench,  can,  as  the  laws  of  those 
islands  now  stand,  be  executed  there,  they  being  govern- 
ed by  laws  of  their  own,  subject  to  His  Majesty's  order 
in  Council,  and  the  subjects  there  are  not  amenable  to 
the  Courts  here. 

And  we  are  of  opinion,  the  only  remedy  the  Crown 
has  for  the  recovery  of  their  debts  in  those  islands, 
upon  the  foot  of  the  present  law,  is  by  proceeding  upon 
proper  suits,  to  be  instituted  in  the  Courts  there,  accord- 
ing to  the  course  of  those  Courts,  and  sending  thither 
the  proper  evidence  of  the  debt,  unless  His  Majesty  shall 
think  fit  to  interpose,  in  his  legislative  capacity,  and  by 
an  order  in  Council,  make  a  new  law  concerning  the 
method  of  recovering  the  Crown  debts  against  the  in- 
habitants there. 

By  this  means,  His  Majesty  may,  if  he  think  fit,  give 
such  force  to  extents  and  other  processes  out  of  the 
Courts  here,  as  he  shall  judge  convenient ;  but  whether 
the  single  instance  of  inconvenience  to  the  Crown,  in 
the  case  of  Carey's  debt,  mentioned  in  the  memorial,  is 
a  sufficient  ground  to  make  any  alteration  in  the  laws 

of  those  islands,  is  humbly  submitted. 

D.  RYDER. 

J.  STRANGE. 
August  12th,  1737. 


13 


90  OPINIONS  OF  EMINENT  LAWYERS. 

(8.)  Of  the  King's  right  to  the  islands  in  the  river 
Delaware,  ly  the  Attorney  and  Solicitor-General  Hay- 
mond  and  YorJce,  in  1721. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  by  his  letter  of  the  30th  of  June 
last,  whereby  he  transmitted  to  us  the  annexed  copy  of 
two  clauses,  extracted  out  of  the  Charters  of  New  Jer- 
sey and  Pennsylvania,  whereby  the  boundaries  of  those 
Provinces  are  ascertained,  and  thereupon  desired  our 
opinion,  whether  Delaware  River  or  any  part  thereof, 
or  the  islands  therein  lyingr  are,  by  the  said  clauses, 
conveyed  to  either  of  the  said  Provinces,  or  whether 
the  right  thereunto  doth  still  remain  in  the  Crown  ?  We 
have  perused  the  said  clauses,  and  have  been  attended 
by  the  agents  of  the  parties,  who  claim  the  Province  of 
Pennsylvania,  and  their  counsel,  who  have  laid  before 
us  a  copy  of  the  letters  patent,  granting  the  said  Pro- 
vince, and  have  heard  what  hath  been  alleged  on  both 
sides  ;  and  upon  consideration  of  the  whole  matter,  are 
of  opinion,  that  no  part  of  Delaware  River,  or  the 
islands  lying  therein,  are  comprised  within  the  granting 
words  of  the  said  letters  patent,  or  of  the  said  annexed 
extract  of  the  grant  of  New  Jersey ;  but,  we  conceive, 
that  the  right  to  the  same  still  remains  in  the  Crown. 

ROBT.  RAYMOND. 
PHIL.  YORKE. 

August  5th,  1721. 


THE  KING'S   PREROGATIVE  ABROAD,  $1 

(9.)  Of  the  King's  right  to  certain  waste  lands  in  New 
Hampshire,  by  the  Attorney  and  Solicitor-General,  Ryder 
and  Murray. 

[State  of  the  case  with  respect  to  the  property  of  the 
waste  and  unimproved  lands  in  the  Province  of  New 
Hampshire,  within  the  limits  of  the  grant  made  by 
the  Council  of  Plymouth  to  John  Mason,  in  the  year 
1629.] 

King  James  the  First,  by  letters  patent,  dated  the 
3d  of  November  1620,  granted  all  that  tract  of  country, 
since  called  New  England,  lying  between  the  latitude  of 
40  and  48  degrees  north,  to  Sir  Ferdinand  Gorges,  and 
thirty-nine  others,  under  the  name  of  the  Council  es- 
tablished at  Plymouth,  in  the  county  of  Devon,  for 
the  planting,  ruling  and  governing  New  England,  in 
America, 

The  Council  of  Plymouth,  by  indenture  under  their 
common  seal,  dated  7th  November,  1629,  granted  unto 
Captain  John  Mason,  his  heirs  and  assigns,  all  that  part 
of  the  main  land,  in  New  England,  lying  upon  the  sea- 
coast,  beginning  from  the  middle  part  of  Merrimack 
River,  and  from  thence  to  proceed  northward  along  the 
sea-coast  to  Piscataway  River,  and  so  forwards  up  within 
the  said  river,  and  to  the  furthest  head  thereof,  and  from 
thence  northward  until  three-score  miles  be  finished  from 
the  first  entrance  of  Piscataway  River,  and  also  from 
Merrimack  through  the  said  river,  and  to  the  furthest 
head  thereof ;  and  so  forward  up  into  the  land  westwjard 
until  three-score  miles  be  finished  tand  from  thence  to 
cross  overland,  to  the  tkree-gcore  miles'  end,  accpunted 
from  Piscataway  River. 

This  tract  of  country  was,  in  consequence,  and  by  ex- 


92  OPINIONS  OF  EMINENT  LAWYERS. 

press  direction  of  the  patent,  called  New  Hampshire  ; 
and  the  grantee  obliged  himself  to  establish  such  gov- 
ernment therein,  as  should  be  agreeable,  as  near  as  might 
be,  to  the  laws  and  customs  of  the  realm  of  England, 
with  liberty,  for  any  person  aggrieved,  to  appeal  to  the 
said  Council  of  Plymouth. 

In  consequence  of  this  grant,  Captain  Mason  was  (as 
is  alleged  by  him,)  at  considerable  expense  in  sending 
over  persons  to  plant  and  settle  in  this  country,  and  in 
erecting  forts  and  other  buildings  and  habitations ;  and 
it  does  appear,  from  several  testimonies  made  use  of,  in 
some  actions  brought  by  his  grandson  against  the  very 
persons  he  had  sent  over,  that  considerable  improvements 
were  made. 

In  1635,  the  Council  of  Plymouth,  by  letters  patent 
dated  the  22d  of  April,  confirmed  their  former  grant  of 
New  Hampshire  to  Captain  Mason,  with  an  extension  of 
the  limits,  which,  in  the  said  letters  patent,  are  described 
in  the  following  words  :  "  All  that  part,  purpart  and  por- 
tion of  the  main  land  of  New  England,  beginning  from 
the  middle  part  of  Naumkeck  River,  and  from  thence  to 
proceed  eastwards  along  the  sea-coast  to  Cape  Ann,  and 
round  about  the  same  to  Piscataway  Harbor,  and  so  for- 
ward up  within  the  river  of  Newwickwannock,  and  to 
the  furthest  head  of  the  said  river,  and  from  thence 
northward  till  sixty  miles  be  finished,  from  the  first  en- 
trance of  Piscataway  Harbor,  and  also  from  Naumkeck 
through  the  river  thereof,  up  into  the  land  west,  sixty 
miles,  from  which  period  to  cross,  overland,  to  the  sixty 
miles'  end,  accounted  from  Piscataway,  through  New- 
wickwannock River,  to  the  land  north-westward,  as 
aforesaid." 

The  eastern  limits  of  the  second  grant  appear  to  be 


THE  KING'S  PREROGATIVE  ABROAD^          93 

the  same  as  those  described  in  the  first,  but  are  extend- 
ed to  the  south-west  as  far  as  the  river  Naumkeck,  which 
is  about  twenty  miles  to  the  westward  of  Merrimack, 
the  western  limit  of  the  former  grant,  which  tract  of 
country  lying  between  the  said  two  rivers,  and  extend- 
ing to  three  miles  north-east  of  Merrimack,  had  been 
granted  by  the  Council  of  Plymouth,  to  the.  Massachu- 
setts Colony,  in  the  year  1728,  prior  to  the  first  grant 
to  Mr.  Mason,  and  is  now  part  of  that  colony. 

It  is  alleged,  that  this  last  grant  to  Mr.  Mason  was 
ratified  and  confirmed  by  the  Crown,  by  a  Charter  dated 
the  19th  of  August  1635,  with  full  power  of  civil  juris- 
diction and  government ;  but  no  such  Charter  as  this 
appears  on  record. 

•  In  the  same  year  1635,  Captain  Mason,  having  no  im- 
mediate issue  then  living,  (his  only  daughter,  who  had 
married  Joseph  Tufton,  Esq.,  being  dead,)  by  his  will, 
dated  the  26th  of  November,  devised,  amongst  other 
things,  to  his  grand-child,  John  Tufton,  and  his  heirs,  all 
his  manor,  messuages,  lands,  tenements,  and  heredita- 
ments, in  New  Hampshire,  except  some  inconsiderable 
legacies,  upon  condition  of  his  changing  his  name  to 
Mason,  the  remainder  to  Robert  Tufton,  the  brother  of 
John  Tufton,  and  other  persons  mentioned  in  the  will. 

Upon  the  death  of  Captain  Mason,  in  the  same  year, 
or  soon  after,  New  Hampshire,  by  virtue  of  the  afore- 
mentioned devise,  came  to  his  grand-son,  John  Tufton, 
but  he  dying  without  issue,  the  limitation  over  to  Ro- 
bert Tufton  took  effect ;  but  he  being  at  that  time  a  mi- 
nor, and  not  coming  of  age  till  1650,  the  servants  and 
agents,  which  his  grand-father,  John  Mason,  had  sent 
over  to  New  Hampshire,  taking  advantage  thereof,  and 
of  the  confusion  of  affairs  in  England  at  that  time,  when 


94  OPINIONS  OF  EMINENT  LAWYERS. 

no  redress  could  be  had,  embezzled,  and  sold  his  stock 
and  effects,  and  put  themselves  under  the  government 
of  the  Massachusetts  colony,  who  then  exercised  juris- 
diction in  New  Hampshire. 

Soon  after  the  restoration,  Mr.  Robert  Mason  (for  Ro- 
bert Tufton,  the  younger  brother,  had  now  taken  upon 
him  that  name,  in  compliance  with  his  grand-father's 
will,)  presented  a  petition  to  King  Charles  the  Second, 
setting  forth  the  unjust  and  illegal  encroachments  of  the 
Massachusetts  colony  over  his  property,  and  praying  that 
justice  might  be  done  him  ;  which  petition  was  referred 
to  Sir  Geofry  Palmer,  then  Attorney-General,  to  con- 
sider of  his  title  to  the  country,  who  reported  that  his 
title  was  good;  and  nevertheless,  in  the  year  1675,  we 
find  Mr.  Mason  presenting  a  second  petition,  to  the  same 
effect  as  the  former,  upon  which  his  title  was  again  re- 
ferred to  the  consideration  of  Sir  William  Jones,  and 
Sir  Francis  Wilmington,  the  then  Attorney  and  Solicitor- 
General,  who,  upon  consideration  of  the  several  patents 
under  which  Mason  claimed,  reported,  that  he  had  a 
good  and  legal  title  to  the  lands  conveyed  by  them. 

In  1679,  the  Crown  took  the  government  of  the  prov- 
ince of  New  Hampshire  into  its  own  hands  ;  a  Commis- 
sion passed  the  Great  Seal,  appointing  a  President  and 
Council  to  govern  the  Province,  in  which  Commission 
Mr.  Mason's  title  is  mentioned  in  the  following  words : 
"And  whereas,  the  inhabitants  of  the  country  have  long 
been  in  possession,  and  arc  said  to  have  made  considera- 
ble improvements  on  the  lands  they  hold,  but  without 
any  other  title  than  what  hath  been  derived  by  the 
government  of  Boston,  in  virtue  of  their  imaginary  line, 
which  title,  as  it  has,  by  the  opinion  of  the  Judges  here, 
been  altogether  set  aside,  so  the  agents  of  Boston  have 


THE  KING'S  PREROGATIVE  ABROAD.          95 

consequently  disowned  any  right,  either  in  the  soil  or 
government,  from  the  three  miles7  line  aforesaid  ;  and  as 
it  appeared  that  the  ancestors  of  Mr.  Mason  obtained 
grants,  from  the  great  Council  at  Plymouth,  for  this 
tract,  and  were  at  very  great  expense  upon  the  same, 
till  molested  and  finally  driven*  out,  which  hath  occa- 
sioned a  lasting  complaint  for  justice  by  the  said  Mr. 
Mason,  ever  since  the  restoration ;  however,  to  prevent, 
in  this  case,  any  unreasonable  demands  which  may  be 
made  by  Mr.  Mason,  for  the  right  he  alleged  to  the  soil, 
we  have  obliged  Mr.  Mason,  to  declare  under  his  hand  and 
seal,  to  demand  nothing  for  the  time  past,  until  the  24th 
of  June  1679,  nor  molest  any  in  their  possession  for  the 
time  to  come,  but  make  out  titles  to  them  and  their 
heirs  forever,  provided  they  would  pay  unto  him  by 
fair  agreement,  in  lieu  of  all  rents,  sixpence  in  the 
pound,  according  to  the  just  and  true  yearly  value  of  all 
houses  built  by  them,  and  of  all  lands,  whether  gardens 
or  orchards,  arable  or  pasture,  which  have  been  im- 
proved by  them,  which  he  will  agree  should  be  bounded 
out  unto  every  of  the  said  parties  concerned,  and  that 
the  residue  might  remain  to  himself,  to  be  disposed  of 
for  his  best  advantage ;  but  if,  notwithstanding  this 
overture  from  Mr.  Mason,  which  seems  so  fair  to  us,  any 
of  the  inhabitants  there  should  refuse  to  agree  with  his 
agents  upon  these  terms,  you  are  empowered  to  inter- 
pose and  reconcile  all  differences,  if  you  can  ;  but  if  not, 
you  are  to  send  home  such  cases  fairly  and  impartially 
stated,  together  with  your  opinions,  that  we  may,  at  our 
Council  Board,  with  due  regard  to  Mr.  Mason's  ancient 
right,  and  the  long  possession,  improvements  or  any 
other  title  of  the  inhabitants,  determine  therein  accord- 
ing to  equity. 


96  OPINIONS  OF  EMINENT  LAWYERS. 

In  1680,  Mr.  Mason  went  over  to  the  Province  to 
prosecute  his  title,  and  although  many  of  the  inhabit- 
ants at  first  appeared  willing  to  submit  to  it,  yet,  as 
the  members  of  the  Council  were  proprietors  of  the 
greatest  part  of  the  cultivated  lands,  they  made  use  of 
all  their  interest  and  tffe  influence  which  their  situation 
and  character  gave  them,  to  prevent  his  getting  posses- 
sion ;  and  they  so  far  prevailed,  that  he  was  at  length 
obliged  to  commence  suits  in  the  Courts  there,  against 
some  of  the  principal  proprietors.  While  these  suits 
were  depending,  Mr.  Mason,  in  order  to  strengthen  his 
interest  at  home,  made  a  surrender  to  the  Crown  of  all 
fines  and  forfeitures  in  New  Hampshire,  and  of  one- 
fifth  of  the  rents  and  revenues  for  the  support  of  gov- 
ernment. 

In  1781,  a  commission  passed  the  Great  Seal,  appoint- 
ing Edward  Cranfield,  Esq.,  Lieutenant-Governor  of  New 
Hampshire,  in  which  Robert  Mason,  styled  therein  pro- 
prietor, and  eight  others  are  appointed  Councillors ;  and 
there  is  a  clause  inserted  in  it,  recognizing  Mr.  Mason's 
title,  in  the  same  words  as  that  inserted  in  the  former 
commission. 

It  does  not  appear,  that  the  authority  or  influence, 
which  it  might  be  supposed  would  be  derived  to  Mr.  Ma- 
son, from  this  commission,  had  any  effect  to  reinstate 
him  in  possession  of  his  property,  the  inhabitants  still 
continuing  to  contest  his  title,  though  several  judgments 
were  given  in  his  favor  in  the  Courts  there,  one  of 
which  was,  upon  an  appeal,  confirmed  by  His  Majesty  in 
Council. 

In  or  about  the  year  1685,  Mr.  Mason  returned  to 
England,  where  he  died,  leaving  the  Province  of  New 
Hampshire  to  his  two  sons,  John  and  Robert  Mason, 


THE  KING'S    PREROGATIVE  ABROAD.  97 

who,  in  1690,  sold  it  to  Samuel  Allen,  of  London,  for 
two  thousand  seven  hundred  pounds,  having  first  sued 
out  a  fine  and  recovery,  in  Westminster  Hall,  in  order  to 
bar  the  entail. 

The  first  mention  made  of  Mr.  Allen's  title  after  this 
purchase,  is  the  Charter  granted  by  King  William  to 
the  Massachusetts  Bay,  in  1691,  where  his  right  is  re- 
served in  the  following  words,  viz  :  "  Provided  also,  that 
nothing  herein  contained  shall  extend  or  be  understood, 
or  taken  to  impeach  or  prejudice  any  right,  title,  inter- 
est or  demand,  which  Samuel  Allen,  of  London,  mer- 
chant, claiming  from  and  under  John  Mason,  Esq.,  de- 
ceased, or  any  other  person  or  persons,  hafh  or  have, 
or  claimeth  to  hold  and  enjoy,  of,  in,  to  or  out  of  any 
part  or  parts  of  the  premises  situate  within  the  limits 
above-mentioned,  but  that  the  said  Samuel  Allen,  and 
all  and  every  Such  person  and  persons,  may  and  shall 
have,  hold  and  enjoy  the  same,  in  such  manner,  and  no 
other,  than  as  if  these  presents  had  not  been  had  or 
made. 

In  1691,  Mr.  Allen  was  appointed  Lieutenant-Gov- 
ernor of  this  Province,  who  brought  many  actions  in  the 
Courts  of  Justice  there,  against  the  inhabitants  in  pos- 
session of  the  lands  he  claimed ;  but  a  verdict  was  given 
against  him  by  the  jury  in  every  action. 

In  1697,  Lord  Bellomont  was  appointed  Governor  of 
all  New  England,  by  which  Mr.  Allen's  commission,  as 
Governor  of  New  Hampshire,  was  superseded. 

In  1702,  Colonel  Allen  brought  an  appeal  to  Her  Ma- 
jesty in  Council,  from  a  verdict  and  judgment  given 
against  him  in  the  Superior  Court  of  Judicature,  in  New 
Hampshire,  the  13th  of  August  1700-,  in  favor  of  Rich- 
ard Waldron,  who,  at  that  time,  possessed  the  largest 
14 


98  OPINIONS  OP  EMINENT  LAWYERS. 

quantity  of  land  in  New  Hampshire,  which  said  judg- 
ment was,  upon  a  hearing  of  all  parties,  affirmed ;  but, 
in  regard,  the  judgment  was  not  final  in  its  nature.  The 
order  directed,  that  the  defendants  should  be  left  at  lib- 
erty to  bring  a  new  action  in  ejectment,  in  the  Courts 
in  New  Hampshire,  in  order  to  try  his  title  to  the  pro- 
priety of  the  lands  in  question,  or  certain  quit-rents, 
payable  out  of  the  same  ;  and  that  in  case,  upon  such 
trial,  any  doubt  in  law  should  arise,  the  jury  be  directed 
to  find  the  matter  specially,  that  is,  what  title  the  ap- 
pellant and  defendant  do  severally  make  out  to  the  said 
lands  in  question,  and  that  the  points  in  law  should  be 
reserved  to  the  Court  before  which  the  same  should  be 
tried,  or  if,  upon  such  trial,  any  doubt  should  arise  con- 
cerning the  evidence  given  at  such  trial,  such  doubts 
should  be  specially  stated  and  taken  in  writing,  to  the 
end,  that,  in  case  either  party  should  think  to  appeal^to 
Her  Majesty  in  Council  from  the  judgment  of  the  Court 
therein,  Her  Majesty  might  be  more  fully  informed,  in 
order  to  a  final  determination  of  the  said  case. 

While  this  appeal  was  depending  before  Her  Majesty 
in  Council,  Mr.  Allen  presented  a  petition,  praying 
to  be  put  in  possession  of  the  waste  and  unimproved 
lands  in  the  said  Province  ;  and,  on  the  28th  of  January 
1702-3,  his  petition  was  referred  to  the  Attorney-Gene- 
ral for  his  opinion  :  first,  whether  Mr.  Mason  had  a 
right  to  the  waste  lands  in  the  Province  of  New  IJamp- 
sliire ;  second,  what  lands  in  that  Province  were  to  be 
reputed  waste  lands  ;  and  third,  by  what  methods  Her 
Majesty  might  put  him  in  possession.  Upon  the  5th  of 
April,  1703,  the  Attorney-General  reported  his  opinion, 
"  that  Samuel  Allen  had  a  good  title  to  the  waste  lands 
of  the  Province  of  New  Hampshire  ;  that  all  lands  lying 


THE   KING'S  PREROGATIVE  ABROAD.  9S 

iminclosed  and  unoccupied,  were  to  be  reputed, waste  ; 
and  that  Mr.  Allen  might  enter  into  and  take.-p&sses- 
sion  of  the  same  ;  and  that,  if  he  should  be  distp.9?^ed 
in  the  possession  thereof,  it  would  be  proper  for  him, 
(Her  Majesty  having  Courts  of  Justice  within  the  said 
Province,)  to  assert  his  right,  and  punish  the  trespassers 
by  legal  proceedings  in  those  Courts  ;  and  that  it  would 
not  be  proper  for  Her  Majesty  to  interpose  in  this  mat- 
ter, unless  the  question  concerning  the  right  should 
come  before  Her  Majesty  by  appeal  from  the  judgments 
that  should  be  given  in  the  Courts  in  the  said  Province, 
save  it  might  be  reasonable,  as  he  conceived,  to  direct 
(if  Mr.  Allen  insisted  on  it,)  on  the  trials,  that  might 
be  had  for  settling  his  right  to  the  said  Province,  that 
the  matters  of  fact  relating  to  his,  and  the  title  of  oth- 
ers claiming  the  same  lands,  might  be  specially  found 
by  the  juries  that  should  be  impannelled  in  the  same 
trials,  that  the  matters  of  fact  might  appear  before  Her 
Majesty,  if  appeals  should  be  made  from  the  judgments 
that  should  be  given  in  the  said  Province." 

In  consequence  of  this  opinion  of  the  Attorney-Gen- 
eral, Colonel  Dudley,  then  Governor  of  New  England, 
was  directed  by  a  letter  from  the  Queen,  that  in  case 
Mr.  Allen  should  be  opposed  by  the  inhabitants,  and 
hindered  from  entering  quietly  into  possession  of  the 
waste  lands,  or  should  be  disturbed  in  the  possession 
thereof,  whereupon  any  trial  or  trials  should  be  brought 
before  Her  Majesty's  Courts  there  for  settling  the  title 
to  waste  lands,  and  that  on  such  trial  or  trials  the  sakl 
Allen  did  insist  that  the  matters  of  fact  should  be  spe- 
cially found  by  the  juries,  that  he  should  i\o  all  whiefe 
in  him  lay  that  the  matters  of  fact  should  be  specially 
found  accordingly. 


•100  OPINIONS  OF  EMINENT  LAWYERS. 

On  the  20th  of  February,  1703-4,  Colonel  Dudley  ac- 
quajnted  the  Assembly  of  New  Hampshire  with  the  or- 
ders he  had  received  relative  to  Mr.  Allen's  title  ;  upon 
,w,hich  the  Assembly  addressed  him  to  represent  to  Her 
Majesty,  that  they  were  sensible  of  her  regard  to  justice 
in  the  late  trial  between  Mr.  Allen  and  Mr.  Waldron, 
which  had  forever  obliged  them  to  a  sense  of,  and  reso- 
lution in,  their  duty  and  obedience  to  Her  Majesty ;  that 
they  only  claimed  the  property  of  such  land  as  was  con- 
tained within  the  bounds  of  their  towns,  which  was 
less  than  one-third  part  of  the  Province,  and  had  been 
possessed  by  them  and  their  ancestors  for  more  than 
sixty  years,  and  that  they  had  no  objection  to  the  other 
two-thirds  being  adjudged  to  Mr.  Allen. 

On  the  3d  of  May  1705,  the  inhabitants  and  terre 
tenants  of  the  Province,  at  a  general  meeting  held  at 
Portsmouth,  came  to  the  following  resolutions  with  re- 
spect to  Mr.  Allen's  title. 

"  That  they  had  not,  on  behalf  of  themselves,  nor  any 
the  inhabitants  of  this  Province,  (whom  they  represent- 
ed,) any  challenge  or  claim  to  any  part  of  this  Province 
extra  the  bounds  of  the  four  towns  of  Portsmouth, 
Hampton,  Dover  and  Exeter,  with  the  hamlets  of  New- 
castle and  Kingston,  &c.,  appertaining,  which  were  all 
comprehended  by  a  line  on  the  western  part  of  Dover, 
Exeter  and  Kingstown,  already  known  and  laid  out,  and 
should  be  forthwith  revised ;  but  the  said  Samuel  Al- 
len, Esq.,  his  heirs  and  assigns,  might  peaceably  hold 
and  enjoy  the  said  great  waste,  containing  forty  miles 
in  length,  and  twenty  miles  in  breadth,  or  thereabouts, 
at  the  heads  of  the  towns  aforesaid,  if  so  should  please 
Her  Majesty ;  and  that  the  inhabitants  of  this  Province, 
at  all  times,  should  be  so  far  from  giving  interruption, 


THE  KING'S  PREROGATIVE  ABROAD.  101 

to  the  settlement  thereof,  that  they  declared  on  their 
behalf,  and  by  the  power  given  them,  that  they  desired, 
by  all  means,  that  the  waste  might  be  planted  and  filled 
with  inhabitants,  the  lands  being  very  capable  thereof, 
to  whom  they  would  all  give  their  assistance  and  encour- 
agement as  far  as  they  were  able. 

"  That  in  case  Samuel  Allen  should,  for  himself,  his 
heirs,  executors,  &c.,  forever  quit-claim  unto  the  present 
inhabitants,  their  heirs  and  assigns,  forever,  of  all  that 
tract  of  land,  and  every  part  and  parcel  thereof,  with  all 
privileges  &c.,  situate,  lying  and  being  within  the  seve- 
ral towns  in  this  Province,  to  the  extents  of  the  bounds 
thereof;  and  also  warrant  and  defend  the  same  to  the 
inhabitants  against  all  manner  of  persons  whatever,  free 
from  mortgage,  entailment  and  all  other  manner  of  in- 
cuinbrances,  and  that  this  agreement,  and  the  lands 
therein  contained,  should  be  accepted  and  confirmed  by 
Her  Majesty;'  then,  and  in  such  case,  they  agreed  to  al- 
lot and  lay  out  unto  Samuel  Allen,  his  heirs  and  assigns, 
forever,  five  hundred  acres  of  land  out  of  the  townships 
of  Portsmouth  and  Newcastle,  1500  acres  out  of  the 
township  of  Dover,  1500  acres  out  of  the  townships  of 
Hampton  and  Kingstown,  and  1500  acres  out  of  the 
township  of  Exeter ;  all  which  lands  should  be  laid  out 
to  him,  the  said  Samuel  Allen,  out  of  the  commonages 
of  the  respective  towns,  in  such  place  or  places  (not  ex- 
ceeding three  places  in  a  town)  as  should  be  most  con- 
venient for  Mr.  Allen,  and  least  detrimental  to  the  in- 
habitants of  the  town. 

"  And  further,  they  agreed  to  pay  to  Samuel  Allen, 
his  heirs  or  assigns,  two  thousand  pounds  current 
money  of  New  England,  (that  is  to  say,)  one  thousand 
pounds  within  twelve  months  after  the  receipt  of  Her 


102  OPINIONS  OF  EMINENT  LAWYERS. 

Majesty's  confirmation  of  this  their  agreement,  and  the 
other  thousand  pounds  within  twelve  months  after  the 
first  payment, 

"  And  further,  that  all  contracts  and  bargains  formerly 
made  between  Mr.  Mason  and  Mr.  Allen,  with  any  the 
inhabitants,  or  other  Her  Majesty's  subjects,  which  were 
botm  fide,  for  lands  or  other  privileges,  in  the  possession 
of  their  tenants,  in  their  own  just  right,  besides  the 
claim  of  Mr.  Mason  or  Mr.  Allen,  and  no  other,  should 
be  accounted  good  and  valid  by  these  articles  ;  but,  if 
any,  the  purchasers,  lessees  or  tenants,  should  refuse  to 
pay  their  just  part  of  what  money  should  be  agreed  to 
be  paid,  referring  to  this  affair  in  equal  proportion  with 
the  rest  of  the  inhabitants,  according  to  the  land  they 
hold,  then  their  share  should  be  abated  by  Mr.  Allen  out 
of  the  two  thousand  pounds  payable  to  him  by  this 
agreement. 

"  And  further,  that  upon  Mr.  Allen's  acceptance  and 
underwriting  of  these  articles,  they  promised  to  give 
good  personal  security  for  the  payments  abovesaid. 

"  And  further,  that  all  actions  and  suits  in  the  law 
depending,  or  thereafter  to  be  brought,  concerning  the 
premises,  should  cease  and  determine,  and  be  void, 
until  Her  Majesty's  pleasure  should  be  further  known 
therein." 

These  propositions  having  been  finally  settled  and 
agreed  to,  were  ordered  to  be  presented  to  Mr.  Allen  for 
his  acceptance ;  but  his  death,  which  happened  on  the 
next  day,  prevented  it. 

Upon  the  death  of  Colonel  Allen,  his  son,  Thomas 
Allen,  petitioned  the  Crown  that  an  appeal  brought  by 
his  father  to  the  Governor  and  Council  against  a  judg- 
ment given  in  the  inferior  Courts  in  favor  of  Waldron, 


THE  KING'S  PREROGATIVE  ABROAD.  103 

might  be  revived  ;  which  petition  having  been  referred 
to  the  Attorney-General  for  his  opinion,  whether  it 
might  be  proper  for  Her  Majesty  to  grant  the  prayer 
thereof,  the  Attorney-General,  on  the  23d  of  March, 
1705-6,  reported  his  opinion,  that,  by  the  plaintiff's 
death,  the  writ  of  error  was  abated,  and  could  not  be 
revived. 

Upon  Mr.  Allen's  suing  for  writs  of  ejectment  in  his 
own  name,  he  was  cast  with  costs,  whereupon  he  ap- 
pealed to  Her  Majesty  in  Council ;  but  died  before  the 
appeal  was  determined,  having  first,  by  deed  of  sale 
dated  the  28th  of  August,  1706,  conveyed  one-half  of 
his  lands  to  Sir  Charles  Hobby,  of  Boston,  in  New  Eng- 
land. 

Upon  the  death  of  Mr.  Allen,  the  half  of  New  Hamp- 
shire which  remained  unsold,  devolved  to  two  infant 
sons,  but  it  does  not  appear  that  any  application  was 
ever  made  since  that  time  by  them,  or  any  one  in  their 
behalf,  or  by  any  claiming  under  them,  to  be  put  in  pos- 
session ;  and  in  the  year  1716,  Colonel  Shute  was  ap- 
pointed Governor  of  New  England,  with  a  power,  in  his 
commission,  of  granting  lands  in  New  Hampshire ;  in 
consequence  whereof,  several  townships  were  laid  oat, 
nor  does  it  appear  that  any  claim  of  property  was  set  up 
until  the  year  1746,  when  John  Tufbon,  who  had  taken 
upon  him  the  name  of  John  Mason,  and  who  is  one  of 
the  surviving  grand-sons  of  Robert  Mason,  pretending 
that  the  fine  and  recovery,  sued  out  in  Westminster 
Hall  by  John  and  Robert  Mason,  in  1691,  previous  to 
the  conveyance  by  them  to  Samuel  Allen,  was  illegal, 
as  it  ought  to  have  been  done  in  the  Courts  there,  him- 
self sued  out  a  common  recovery  in  the  Courts  of  New 
Hampshire,  in  consequence  whereof  the  sheriff  put  him 


104  OPINIONS  OF  EMINENT  LAWYERS. 

in  possession,  and  he  sells  his  right  by  deeds  to  sundry 
persons  in  the  Province,  who  have  taken  upon  them  to 
grattt  lands,  and  lay  out  townships. 

Question. — Whether  the  uniform  silence  and  discon- 
tinuance of  all  sort  of  claim  to  the  waste  and  unim- 
proved lands,  within  the  Province  of  New  Hampshire, 
for  more  than  forty  years  successively,  during  the 
greater  part  of  which  time  the  Crown  has  occasionally 
made  several  grants  of  the  unimproved  lands  of  the  said 
Province,  without  exception  or  complaint  from  any  per- 
son or  family,  does  not  prescriptively  vest  the  waste 
lands  of  the  Province  in  the  Crown?  And  how  far 
can  any  private  claim  to  these  lands,  so  long  deserted, 
be  now  revived  against  such  an  exercise  of  power  over 
them  in  the  Crown  ?  If  these  waste  lands  are  not  in  the 
Crown,  to  whom  do  they  belong?  And  what  will  be  the 
regular  and  best  method  of  bringing  this  matter  to  a  final 
legal  determination  ? 

It  is  impossible  to  give  an  answer  to  this  qucere  with- 
out knowing  many  circmstances  not  appearing  upon  the 
state  of  this  case. 

First,  It  is  asked  to  whom  these  lands  belong?  They 
were  originally  granted  to  Mason  ;  they  were  afterwards 
conveyed  to  Allen.  Whether  that  conveyance  be  good, 
depends  upon  the  will  of  John  Mason,  not  particularly 
stated  ;  upon  the  fine  and  recovery  said  to  have  been 
levied  and  suffered,  not  particularly  stated ;  upon  the 
usage  or  laws  in  New  Hampshire,  in  relation  to  barring 
estates  tail,  not  stated  at  all ;  upon  the  infancy  or  other 
disability  of  the  issue  in  tail ;  his  acquiescence  ;  the  acts 
of  limitation  in  New  Hampshire,  none  of  which  matters 
are  before  us. 

&econd,    It  is   asked,    whether  they  belong  to    the 


THE  KING'S  PREROGATIVE  ABROAD.  105 

Crown  1  We  suppose,  upon  this  ground,  that  neither 
the  Masons  nor  Aliens,  for  forty  years  past,  have  done 
anything  till  1746.  This  depends  upon  a  variety  of  cir- 
cumstances :  the  nature  and  causes  of  the  acquiescence ; 
the  acts  done  by  the  Crown  in  the  meantime  ;  the  kind 
of  possession  taken  in  1746  ;  and  what  has  been  done 
since.  We  can  only  say,  that  where  persons,  under 
grants  from  the  Crown,  have  quietly  possessed  and  im- 
proved, so  great  regard  is  always  had  to  persons  who 
have  settled  lands  in  America,  that  it  is  hardly  possible 
for  a  stale  title  to  be  so  circumstanced  as  to  prevail 
against  them;  and  here,  the  length  of  time  during  which 
they  have  been  permitted  to  improve,  is  extremely  ma- 
terial. 

Upon  the  whole,  we  cannot  advise  anything  so  proper, 
as  that  the  parties,  if  any  suits  are  commenced  in  New 
Hampshire,  should  take  care  to  have  the  evidence  so  laid 
before  the  Court,  as  to  be  transmitted  over  to  England, 
in  case  of  an  appeal  to  the  King  in  Council. 

D.  RYDER. 

August  7,  1752.  W.  MURRAY. 

(10.)  Mr.  West's  opinion,  how  far  the  King  has  a 
right  to  grant  ceded  lands. 

Case.  By  the  treaty  of  Utrecht,  the  King  of  France 
gave  up  the  French  part  of  Newfoundland  to  Great 
Britain;  but  the  French  inhabitants  were  allowed  to  re- 
main there  and  enjoy  their  estates  and  settlements,  pro- 
vided they  qualified  themselves  to  be  subjects  of  Great 
Britain ;  and  those  who  would  not  do  it,  had  leave 
to  go  elsewhere,  and  take  with  them  their  moveable 
effects. 

15 


106  OPINIONS  OF  EMINENT  LAWYERS. 

But  by  Her  late  Majesty's  letter,  in  consideration  of 
the  King  of  France's  releasing  a  number  of  Protestant 
slaves  out  of  his  gallies,  she  did  permit  the  French  in- 
habitants at  Placentia,  in  Newfoundland,  who  were  not 
willing  to  become  her  subjects,  to  sell  and  dispose  of  their 
houses  and  lands  there. 

Quaere. — Whether  the  Queen,  by  her  said  letter, 
could  dispose  of  lands  granted  to  the  Crown  by  treaty  7 

I  am  of  opinion  that  the  Queen  could  not,  by  her  let- 
ter, dispose  of  lands  granted  to  the  Crown  by  treaty ; 
but  if  she  entered  into  any  regular  agreement  with  the 
Crown  of  France  for  that  purpose,  she  was,  by  the  law 
of  nations,  engaged  to  do  everything  in  her  power  to 
enable  the  French  to  have  the  benefit  of  it;  which 
might  be  done  by  her  confirming  the  title  to  such  of 
her  subjects  as  should  pay  the  French  a  consideration,  in 
money  or  otherwise,  for  their  lands  or  houses,  &c. 

RICH.  WEST. 
March  10,  1719-20. 

(11.)  The  opinion  of  the  Attorney  and  Solicitor,  Yorke 
and  Talbot,  whether  the  King's  right  to  the  lands  of 
Pemaquid  remain  in  the  Crown. 

To  the  Right  Hon.,  the  Lords  Commissioners,  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  referring  to  us  the  state  of  a  case 
hereunto  annexed,  concerning  the  right  to  a  tract  of 
land  lying  between  the  rivers  Kennebeck  and  St.  Croix, 
and  directing  us  to  hear  both  parties,  and  report  our 
opinion,  in  point  of  law,  thereupon,  to  your  Lordships  ; 
and  also,  in  obedience  to  your  Lordship's  commands,  sig- 


THE  KING'S  PREROGATIVE  ABROAD.         107 

nified  to  us  by  Mr.  Popple,  referring  to  us  the  several 
annexed  petitions  of  Sir  Bibye  Lake,  Baronet,  and  oth- 
ers, and  of  Samuel  Waldo,  merchant,  on  behalf  of  Elisha 
Cook,  Esq.,  and  others,  and  directing  us  to  report  our 
opinion  upon  the  same  to  your  Lordships ;  we  have  con- 
sidered the  said  state  of  a  case  and  petitions,  and  find 
that  the  said  state  of  a  case  sets  forth,  that,  by  the  Mas- 
sachusetts Charter,  it  is  ordained,  that  the  territories  and 
colonies  commonly  called  and  known  by  the  name  of  the 
Colony  of  Massachusetts  Bay,  and  the  Colony  of  New 
Plymouth,  the  Province  of  Maine,  the  territory  called 
Acadia  or  Nova  Scotia,  and  all  that  tract  of  land  lying 
between  the  said  territories  of  Nova  Scotia  and  the  said 
Province  of  Maine,  be  erected,  united  and  incorporated 
into  one  real  Province,  by  the  name  of  the  Province  of 
the  Massachusetts  Bay,  in  New  England. 

And  that  their  Majesties  do,  thereby,  grant  unto  the 
inhabitants  of  the  said  Province  or  Territory  of  the 
Massachusetts  Bay,  and  their  successors,  all  that  part  of 
New  England,  in  America,  lying  within  the  boundaries 
in  the  said  Charter  particularly  mentioned  ;  and  also, 
the  lands  and  hereditaments  lying  and  being  in  the 
country  or  territory  commonly  called  Acadia  or  Nova 
Scotia ;  and  all  those  lands  and  hereditaments  lying  and 
extending  between  the  said  country  or  territory  of  Nova 
Scotia  and  the  river  of  Sagadahock  or  Kennebeck,  or 
any  part  thereof;  and  all  lands,  grounds,  places,  soils 
woods  and  wood  grounds,  havens,  ports,  rivers,  waters, 
and  other  hereditaments  and  premises  whatsoever,  lying 
within  the  said  boundaries  and  limits  aforesaid,  and 
every  part  and  parcel  thereof;  and  also,  all  islands  and 
islets  lying  within  ten  leagues  directly  opposite  the  main 
land,  within  the  said  bounds,  and  all  mines  and  mine- 


108  OPINIONS    OF  EMINENT   LAWYERS. 

rals,  as  well  royal  mines  of  gold  and  silver  as  other 
mines  and  minerals,  whatsoever,  in  the  said  lands  and 
premises,  or  any  part  thereof,  to  have  and  to  hold  the 
same  with  their  and  every  of  their  appurtenances  to  the 
said  inhabitants  of  Massachusetts  Bay,  and  their  succes- 
sors, to  their  only  proper  use  and  behoof,  forevermore, 
be  holden  of  their  Majesties,  as  of  their  manor  of  East 
Greenwich,  &c.,  yielding  therefore,  yearly,  one-fifth  part 
of  all  gold  and  silver  ore,  &c. 

That  in  the  clause  in  the  said  Charter,  directing  the 
choice  of  the  councillors  or  assistants  of  the  said  Pro- 
vince, who  are  to  be  twenty-eight  in  number,  it  is  or- 
dered that  eighteen  of  them,  at  least,  shall  be  inhabit- 
ants or  proprietors  of  lands  within  the  territory  formerly 
called  the  Colony  of  the  Massachusetts  Bay,  and  four,  at 
least,  of  the  inhabitants  or  proprietors  of  lands  within 
the  territory  formerly  called  New  Plymouth,  and  three, 
at  the  least,  of  the  inhabitants  or  proprietors  of  land 
within  the  territory  formerly  called  the  Province  of 
Maine,  and  one,  at  the  least,  of  the" inhabitants  or  propri- 
etors of  land  within  the  territory  lying  between  the 
river  of  Sagadahock  and  Nova  Scotia. 

That  there  is  power  given  to  the  Governor  and  Coun- 
cil to  impose  taxes,  &c.,  upon  the  estates  and  persons  of 
the  inhabitants  or  proprietors  of  the  said  Province. 

That  in  the  said  Charter  is  the  following  proviso :  pro- 
vided that  it  shall  and  may  be  lawful  for  the  said  Gov- 
ernor and  General  Assembly,  to  make  or  pass  any  grant 
of  lands  lying  within  the  bounds  of  the  colonies,  form- 
erly called  the  colonies  of  the  Massachusetts  Bay  and 
New  Plymouth,  and  Province  of  Maine,  in  such  manner 
as  heretofore  they  might  have  done,  by  virtue  of  any 
former  Charter  or  letters  patent,  which  grants  of  lands 


THE  KING'S  PREROGATIVE  ABROAD.         109 

within  the  bounds  aforesaid,  we  do  hereby  will  and  or- 
dain to  be,  and  continue  forever,  in  full  force  and  effect, 
without  our  further  approbation  and  consent ;  and  so 
as,  nevertheless,  and  it  is  our  royal  will  and  pleasure, 
that  no  grant  or  grants  of  any  lands  lying  or  extending 
from  the  river  of  Sagadahock  to  the  Gulf  of  St.  Law- 
rence and  Canada  Rivers,  and  to  the  main  sea  north- 
ward and  eastward,  to  be  made  or  passed  by  the  Gov- 
ernor and  General  Assembly  of  our  said  Province,  be  of 
any  force,  validity  or  effect,  until  we,  our  heirs  and  suc- 
cessors, shall  have  signified  our  or  their  approbation  of 
the  same. 

^That  within  the  tract  of  land  lying  between  St.  Croix 
and  Sagadahock,  is  a  place  called  Pemaquid,  where 
there  was  a  fort  built  by  James,  then  Duke  of  York,  to 
whom  that  tract  was  granted  by  King  Charles  the 
Second,  in  1664,  in  order  to  preserve  it  from  the  In- 
dians ;  but  the  Indians  afterwards,  assisted  by  the 
French,  made  an  incursion  into  the  said  tract  of  land, 
and  not  only  demolished  the  said  fort,  but  also,  destroyed 
many  families,  then  in  a  flourishing  condition,  which  had 
been  settled  there  under  the  said  grant  to  the  Duke  of 
York. 

That  soon  after  the  said  Charter  was  granted,  Sir  Wil- 
liam Phipps  was  appointed  Governor  of  the  Massachu- 
setts, in  whose  time,  the  said  fort  of  Pemaquid  was  re- 
built, which  was  done  for  a  show  of  their  government 
over  that  tract  of  country,  but  no  settlement  of  fami- 
lies were  made  therein,  and  the  place  being  in  a  naked 
and  defenceless  condition,  it  was,  in  1696,  taken  by  the 
French,  who  demolished  the  said  fort  at  Pemaquid,  and 
the  French  King  put  that  part  of  the  country  under  the 


110  OPINIONS  OF  EMINENT  LAWYERS. 

government  of  his  Governor  of  Nova  Scotia,  where  his 
next  garrison  then  was,  and  it  remained  in  possession  of 
the  French,  after  the  peace  of  Reswick. 

That  the  French,  as  a  testimony  of  their  right  to,  and 
possession  of,  the  said  tract,  built  a  church  at  the  river 
Kennebeck  or  Sagadahock. 

That  Joseph  Dudley  Esq.,  (then  Governor  of  the 
Massachusetts,)  several  times,  by  orders  from  Her  then 
Majesty,  pressed  the  House  of  Representatives  to  re- 
build the  fort  and  restore  the  fortifications  at  Pema- 
quid;  upon  which  the  House  of  Representatives,  in 
their  address  to  the  Queen,  expressed  themselves  as 
follows : 

lt  As  to  the  building  a  fort  at  Pemaquid,  the  expenses 
already  made  on  our  fortresses,  garrisons,  marches  and 
guards  by  sea,  amounting  to  more  than  eighty  thousand 
pounds,  a  great  part  whereof  is  in  arrear  and  unpaid,  be- 
sides the  daily  growing  charge  for  our  necessary  de- 
fence, and  the  prosecution  of  the  war,  is  become  almost 
insupportable,  and  has  brought  us  under  very  distressing 
circumstances  ;  and  were  the  building  a  fort  at  Pema- 
quid superadded  thereto,  it  would  render  the  charge  far 
beyond  our  ability,  and,  we  humbly  conceive,  would  be 
no  security  to  our  frontiers,  or  bridle  to  the  Indians,  the 
situation  thereof  being,  so  much  out  of  their  ordinary 
road,  and  upwards  of  one  hundred  miles  distant  from 
any  part  of  this  Province,  at  present  inhabited  by  the 
English,  and  of  little  or  no  advantage  to  this  Province  ; 
although  the  expense  in  building  and  supporting  the  late 
fort  at  Pemaquid,  cost  not  less  than  twenty  thousand 
pounds,  which  was  not  lost  by  any  neglect  of  the  gov- 
ernment, it  being  fully  supplied  for  the  defence  and  sup- 


THE  KING'S  PREROGATIVE  ABROAD.         Ill 

port  thereof,  but  by  the  cowardice  or  treachery  of  the 
then  commanding  officer  upon  the  place,  who  received 
his  trial,  but  was  acquitted." 

That  the  said  tract  of  land  continued  in  the  posses- 
sion of  the  French  to  the  year  1710,  when  it  was  re- 

• 

taken  by  General  Nicholson,  with  some  troops  sent  from 
hence  to  take  Nova  Scotia,  which,  together  with  the  said 
tract,  was  then  surrendered  to  the  said  General  by  the 
French  Governor,  and  which  was  afterwards  yielded  to 
the  Crown  of  Great  Britain,  by  the  twelfth  article  of  the 
treaty  of  Utrecht. 

That  Colonel  Shute,  Governor  of  the  Massachusetts, 
by  His  late  Majesty's  orders,  recommended  to  the  House 
of  Representatives  the  refitting  the  fort  at  Pemaquid,  or 
the  building  some  fort  near  that  place,  that  might  be  a 
greater  security  to  their  frontiers,  upon  which  the  said 
House  of  Representatives  sent  the  following  message  to 
the  Governor : 

"  That,  upon  a  further  consideration  of  His  Excellen- 
cy's speech  to  the  Court,  at  the  beginning  of  last  ses- 
sions, the  House  are  humbly  of  opinion,  that,  consider- 
ing the  low  circumstances  of  this  Province,  and  the 
heavy  debts  that  are  upon  it,  that  His  Majesty's  sub- 
jects here  are  not  able  to  come  into  so  great  a  charge  as 
the  rebuilding  the  fort  at  Pemaquid  would  be,  and  that, 
in  case  of  a  rupture,  a  fortification  there  would  be  no 
great  security  to  the  lives  and  estate  of  His  Majesty's 
subjects  here,  as  our  past  experience  has  abundantly 
convinced  us,  by  reason  that  Pemaquid  is  at  so  great  a 
distance  from  our  English  settlements ;  but  that,  at  all 
times,  what  shall  be  necessary  for  the  defence  and  pre- 
servation of  the  governments  here,  we,  as  good  and 
loyal  subjects,  shall  readily  and  cheerfully  comply  with. 


112  OPINIONS  OF  EMINENT  LAWYERS. 

That  this  tract  of  land,  which  is  reputed  part  of  Nova 
Scotia,  did  thus  lie  waste  and  uninhabited,  though  capa- 
ble of  very  great  improvements,  and  by  the  situation 
thereof,  the  lands  in  those  parts,  with  respect  to  their 
produce,  harbors  and  fisheries,  are  of  more  value  than 
any  others  in  that  part  of  America,  and  would  produce 
considerable  quit-rents,  if  the  right  thereto  is  in  the 
Crown,  so  that  the  title  to  the  government,  as  well  as  to 
the  property  in  the  soil,  is  of  very  great  consequence  ; 
and  therefore,  upon  a  representation  to  His  Majesty  in 
Council,  some  Protestants  from  Ireland,  and  from  the 
Palatinate,  were  desirous  to  settle  upon  the  said  tract 
of  land,  lying  between  the  rivers  St.  Croix  and  Kenne- 
beck  (Sagadahock),  extending  about  one  hundred  and 
eighty  miles  in  length  on  the  sea-coast,  His  Majesty  di- 
rected that  his  surveyor  of  the  lands  of  Nova  Scotia 
should  assign  them  lands,  according  to  their  desire, 
which  he  accordingly  did  about  a  year  ago,  and  several 
families  are  now  settled  thereon,  and  improving  the 
same,  which  were  afterwards  to  be  ratified  to  them. 

That  the  inhabitants  of  Massachusetts  Bay,  who,  till 
this  time,  always  neglected  the  said  tract  of  land,  as 
very  inconsiderable,  and  not  worth  their  notice,  claim  not 
only  a  right  to  the  government,  but  also,  to  the  lands 
in  the  said  tract,  and  the  government  there  threatens  to 
drive  the  families  (now  settled  there,)  immediately  out 
of  the  same. 

That  the  inhabitants  of  the  Massachusetts  do  not  now 
pretend  any  right  to  that  part  called  Nova  Scotia,  which 
is  likewise  included  in  their  Charter,  and  the  said  tract 
of  land  is  reputed  part  of  Nova  Scotia,  though  it  is  differ- 
ently described  in  the  Charter. 

Upon  this  state  of  the  case,  the  questions  proposed  to 


THE  KING'S  PREROGATIVE  ABROAD.         113 

us  were  :  First,  Whether  the  inhabitants  of  the  Massa- 
chusetts Bay  (if  they  ever  had  any  right  to  the  govern- 
ment of  the  said  tract  of  land  lying  between  St.  Croix 
and  Kennebeck,  or  Sagadahock,)  have  not,  by  their  neg- 
lect and  even  refusal  to  defend, '  take  care  of  and  im- 
prove the  same,  forfeited  their  said  right  to  the  govern- 
ment, and  what  right  they  had  under  the  Charter,  and 
now  have  to  the  lands  ? 

Second,  Whether,  by  the  said  tract  being  conquered 
by  the  French,  and  afterwards  reconquered  by  General 
Nicholson  in  the  late  Queen's  time,  and  yielded  up  by 
France  to  Great  Britain  by  the  treaty  of  Utrecht,  that 
part  of  the  Charter  relating  thereto,  became  vacated ; 
and  whether,  _the  government  of  that  tract  and  the 
lands  thereof,  are  not  absolutely  revested  in  the  Crown  ; 
and  whether,  the  Crown  has  not,  thereby,  a  sufficient 
power  to  appoint  governments,  and  assign  lands  to  such 
families  as  shall  be  desirous  to  settle  there  ? 

The  said  petition  of  Sir  Bibye  Lake  and  others,  sets 
forth,  that  the  said  Captain  Thomas  Lake,  the  petition- 
er's late  grand-father,  and  the  said  Major  Thomas  Clark, 
joined  in  making  several  purchases  of  the  Indian  Saga- 
mores or  Chiefs,  and  others  in  the  eastern  parts  of  Mas- 
sachusetts Bay,  in  New  England,  of  and  in  all  those 
lands  lying  on  the  river  Kennebeck,  extending  from  the 
northernmost  part  of  Cape  Sacantry,  on  both  sides  of 
the  said  river  Kennebeck,  reaching  ten  miles  into  the 
woods  on  each  side  of  the  said  river,  east  and  west,  and 
so  extending  southward  into,  a  certain  place,  called  by 
the  name  of  a  Swome,  all  which  is  about  four  leagues 
in  length,  south  and  north,  together  with  all  ponds, 
creeks,  cones,  woods,  underwoods,  mines,  minerals,  privi- 
leges and  appurtenances  ;  and  all  those  lands  lying  on 
16 


114  OPINIONS  OP  EMINENT  LAWYERS. 

both  sides  the  said  river  Kennebeck,  namely,  from  the 
lower  end  of  a  certain  place  called  Neaguamkot,  which 
is  a  little  below  some  islands  in  the  said  river  Kenne- 
beck, and  so  going  up  the  river  four  miles  above  the 
falls  of  Tokonock,  and  reaching  ten  miles  into  the 
woods  on  both  sides  of  the  said  river  Kennebeck,  with 
all  woods,  underwoods,  mines,  minerals  and  privileges 
thereunto  belonging  ;  and  also,  free  passage  for  vessels  up 
and  down  the  said  river  Kennebeck,  and  all  that  tract 
of  land  lying  near  or  about  Waksrong,  with  all  rights 
and  privileges  thereunto  belonging ;  and  all  that  tract 
of  land  lying  near  or  about  Agnascorongau,  adjoining  to 
Kennebeck  River  on  the  north-west,  and  so  south-west 
to  the  southernmost  island  of  Neguomkay.,  and  six  miles 
from  Toconock  falls  north-eastward,  and  for  fifteen  miles 
all  along  from  the  said  river  Kennebeck  into  the  main 
land  south-eastward,  together  with  all  rights  and  privi- 
leges, as  well  by  water  as  by  land,  thereto  belonging ; 
and  all  that  island,  lying  on  the  east  side  of  the  said 
river  Kennebeck,  called  Arrowsick  or  Richard's  Island, 
and  all  houses,  woods,  underwoods,  ponds,  waters, 
swamps,  mines  and  profits  thereunto  belonging,  and  all 
that  place  or  seat  of  ground,  called  Negwassey,  lying 
between  the  bounds  of  Sagadahock  River  on  the  west- 
ern side,  and  Sheepscott  River  on  the  eastern  side,  one 
great  pond  on  the  north  side,  and  Negwassey  River  on 
the  south-west  side,  with  Wigwam  or  Indian  House  ;  and 
all  that  other  house  wherein  James  Cole  dwelt,  with  all 
out-houses  and  inclosed  grounds,  and  all  waste  ground 
bounded  as  followeth,  viz :  Sagadahock  River  on  the  west 
or  westerly,  and  so  to  Merry-Meeting  Creek,  and  from 
thence  to  the  northward  eight  miles  up  into  the  coun- 
try, and  from  thence  and  easterly  to  Sheepscott  River, 


THE  KING'S  PREROGATIVE  ABROAD.         115 

and  from  thence  to  a  place  called  Tepenegine,  south- 
erly, and  from  thence  all  along  Monswaggen  Bay,  and 
so  along  to  Russeck,  and  from  Russeck  to  Tirseck,  and 
from  thence  to  Merry-Meeting,  all  along  Sagadahock 
River  as  aforesaid,  together  with  all  rivers,  ponds, 
brooks,  cones,  inlets,  meadows,  underwoods,  mines  and 
all  other  privileges,  advantages  and  profits,  as  by  au- 
thentic copies  of  the  original  deeds  of  purchase,  ac- 
knowledged by  the  said  Indian  Sagamores,  and  entered 
and  recorded  at  Boston,  in  New  England  aforesaid  (ac- 
cording to  the  laws  of  the  said  Province,)  then  in  the 
petitioner's  custody,  and  ready  to  be  produced,  might 
appear. 

That  the  said  Thomas  Lake  and  Thomas  Clark,  being 
equally  interested  in  and  entitled  as  tenants  in  common 
to  the  said  land  and  premises,  did,  in  or  about  the  year 
1650,  and  from  and  after  that  time,  erect  and  build 
several  houses  and  out-houses,  and  several  saw-mills  on 
the  said  Arrowsick  Island,  Negwassey,  and  other  places 
on  the  main  land  between  the  said  Kennebeck  River 
and  the  river  Penobscott,  and  cleared  and  made  many 
inclosures,  and  brought  and  encouraged  many  families 
to  come  and  inhabit  the  same,  and  had  several  large 
farms,  whereon  were  very  great  stocks  of  cattle,  and 
built  and  made  several  grist-mills,  bake-houses,  smiths' 
shops,  coopers'  shops,  and  other  conveniences  for  handi- 
craft trades,  and  caused  to  be  built  several  ships,  boats 
and  vessels,  which  they  fitted  out  and  victualled,  and 
loaded  them  with  the  produce  of  the  said  premises,  for 
Boston  and  other  parts,  wherein  the  said  Thomas  Lake 
and  Thomas  Clark  expended  between  them  to  the  amount 
of  twenty  thousand  pounds  and  upwards. 

That  in  the  years  1673,  1674  and  1675,  the  General 


116  OPINIONS  OF  EMINENT  LAWYERS. 

Court,  assembled  at  "Boston,  for  government  of  the  Pro- 
vince of  the  Massachusetts  Bay,  in  New  England,  did 
order  that  the  said  eastern  parts  within  their  jurisdic- 
tion, whereof  the  aforesaid  lands  and  premises  are  part, 
should  be  called  Devonshire,  and  by  reason  of  the  great 
distance  of  those  parts  from  Boston,  aforesaid,  did  em- 
power the  Governor  of  the  said  Province,  with  four 
more  of  the  assistants  of  the  said  General  Court,  to  ap- 
point proper  and  fit  persons  to  be  Commissioners  to 
hold  a  County  Court  and  Courts,  for  ending  of  small 
causes  ;  and  that  such  Commissioners  should  have  mag- 
istratical  power  to  punish  criminal  offences,  to  marry 
and  to  settle  the  militia  at  Pemaquid,  Cape  Nawaggon, 
Kennebeck,  Negwassey,  Sagadahock,  Damarillis  Cove, 
Monhegin,  and  other  places  within  the  said  county  of 
Devon,  and  to  administer  oaths  to  constables  and  other 
officers,  and  to  exercise  all  necessary  jurisdiction,  both 
military  and  civil,  for  the  better  government  and  pro- 
tection of  the  said  county  of  Devon,  within  the  line  of 
their  patent ;  and  that  the  said  Thomas  Lake  and 
Thomas  Clark  were  appointed  Commissioners,  with  oth- 
ers, for  the  purposes  aforesaid,  as  by  authentic  copies 
of  the  orders  of  the  said  General  Court,  then  in  the 
petitioner's  custody,  ready  to  be  produced,  might  appear. 

That  in  the  latter  end  of  the  year  1675,  or  in  the  be- 
ginning of  the  year  1676,  a  war  broke  out  with  the  In- 
dians, who  invaded  the  said  county  of  Devon,  and  killed 
the  said  Thomas  Lake,  in  defence  of  the  said  settle- 
ments; and  afterwards  burnt,  ruined  or  destroyed  all,  or 
the  greatest  part  of  the  said  settlements,  and  killed  or 
drove  away  their  tenants  and  cattle  therefrom. 

That  the  said  Major  Thomas  Clark,  escaping  the  In- 
dians, survived  the  said  war,  and  afterwards  returned  to 


THE   KING'S  PREROGATIVE  ABROAD.  117 

• 

said  lands,  and  with  the  concurrence  and  assistance  of 
the  widow  of  the  said  Thomas  Lake,  the  petitioner's  late 
grand-mother,  endeavored,  with  a  very  great  expense,  to 
resettle  the  premises,  and  to  repair  and  rebuild  the  seve- 
ral settlements  ruined  or  destroyed  by  the  Indians  as 
aforesaid,  and  proceeded  therein  until  such  time  as  a 
new  war  broke  out  with  the  Indians,  who  again  invaded, 
burnt,  ruined,  or  destroyed  all  such,  their  new  works  and 
settlements,  and  killed  or  drove  away  their  tenants  and 
cattle  from  off  the  premises,  after  which  no  further  at- 
tempt could  be  made  to  resettle  the  same,  by  reason  of 
the  frequent  incursions  of  the  Indians,  and  of  the  con- 
tinued war,  or  hostilities,  between  them  and  the  English 
in  those  parts,  until  the  peace  was  concluded  at  Utrecht: 
upon  which,  hostilities  ceasing,  the  petitioner,  in  con- 
junction with  the  said  JosiahWalcot,  and  Colonel  Hutch- 
inson,  did,  after  the  said  peace  of  Utrecht,  in  the  year 
1714,  send  over  from  hence  Mr.  John  Watts,  a  very  care- 
ful and  understanding  person,  to  Arrowsick  Island,  and 
the  other  premises,  in  order  to  resettle  the  same,  and  did 
empower  him  to  settle  there  one  hundred  families  ;  and 
the  said  Mr.  Watts  did,  accordingly,  go  over  for  that  pur- 
pose with  his  family,  and  the  petitioner  did  advance  to 
the  said  Mr.  Watts  the  sum  of  two  thousand  pounds,  and 
upwards,  towards  his  proportion  of  the  charge  to  be  ex- 
pended by  him,  the  said  Mr.  Watts,  in  making  such  in- 
tended settlements,  exclusive  of  what  the  said  Colonel 
Hutchinson  and  Mr.  Walcot  did  advance  for  that  pur- 
pose ;  and  the  said  Mr.  Watts  was  very  industrious  in 
making  several  settlements  and  buildings,  and  making 
several  mills,  houses,  and  other  improvements,  for  con- 
venience and  defence  against  insults  from  the  Indians, 
and  had  settled  there  upward  of  twenty  families,  but 


118  OPINIONS  OF  EMINENT  LAWYERS. 

died  before  he  had  completed  all  the  intended  settle- 
ments :  upon  whose  death  Mr.  Penhallow,  marrying  his 
widow,  lived  there,  and  looked  after  and  took  care  of 
the  said  settlements,  in  the  best  manner  he  could,  till  a 
new  war  broke  out  with  the  Indians,  in  or  about  the 
year  1722  or  1723,  when  the  Indians  again  invaded 
those  parts,  and  came  down  in  a  great  body,  and  burnt, 
ruined,  or  destroyed  all  such  mills,  and  settlements,  as 
the  said  Mr.  Watts  had  made,  except  a  fortified  house, 
which  the  said  Mr.  Watts  had  caused  to  be  built  on  the 
Island  of  Arrowsick,  for  protection  against  them,  which, 
together  with  some  other  houses  which  were  under  the 
defence  thereof,  the  said  Indians  several  times  attacked, 
and  attempted  also  to  burn  or  destroy,  but  were  repulsed 
and  forced  to  retire  from  the  same,  and  which  houses 
are  now  standing  ;  but  the  Indians  killed  or  drove  away 
their  cattle  from  thence,  and  also  the  tenants  and  cattle, 
from  their  other  settlements. 

That  since  this  last  war  ended,  the  petitioner,  with  the 
said  Colonel  Hutchinsoii  and  Mr.  Walcot,  were  endeav- 
oring to  repair  and  resettle  the  premises,  and  to  encour- 
age several  families  to  go  and  settle  thereon;  but  wrere 
prevented  by  Colonel  Dunbar,  Surveyor-General  of  His 
Majesty's  woods,  in  America,  who  pretended  some  in- 
structions, or  a  commission  from  His  Majesty,  to  make 
settlements  within  the  limits  of  their  lands,  and  in  other 
places  in  the  eastern  parts,  in  the  Province  of  Massa- 
chusetts, and  to  erect  the  same  into  a  separate  govern- 
ment, from  that  Province,  although  the  same  is  included 
in  the  Charter  granted  to  the  subjects  of  the  said  Pro- 
vince ;  and  •  notwithstanding  the  said  Colonel  Dunbar 
hath,  since  his  arrival  there,  been  waited  upon  and  made 
fully  acquainted,  by  the  said  Colonel  Hutchinson,  with 


THE  KING'S  PREROGATIVE  ABROAD.  119 

the  matters  aforesaid,  and  with  his,  Mr.  Walcot's  and 
the  petitioner's  title  to  their  said  lands  and  premises, 
yet  he  insists,  that  he  shall  be  obliged  to  enter  upon 
and  make  settlements  therein,  unless  His  Majesty  shall 
be  graciously  pleased  to  forbid  or  restrain  him  from  so 
doing. 

That  Dunbar's  pretensions  have  not  only  discouraged 
all  persons  from  going  to  settle  the  premises,  but  have 
terrified  such  tenants  as  the  petitioner  and  the  said 
Colonel  Hutchinson  and  Mr.  Walcot  have  there,  from 
enlarging  or  improving  their  settlements  ;  all  which  the 
petitioner  apprehended  to  be  his  duty  humbly  to  repre- 
sent to  His  Majesty. 

That  the  petitioner,  the  said  Colonel  Hutchinson  and 
Mr.  Walcot,  being  entitled  to  the  said  premises,  by  pur- 
chase from  the  Indian  Sagamores  or  Sachems,  allowed 
of  and  approved  by  the  General  Court,  for  the  govern- 
ment of  the  Massachusetts  Province,  and  confirmed  by 
the  several  Charters  granted  to  the  subjects  of  the  said 
Province,  and  they  and  their  ancestors  having  endeav- 
ored, all  that  in  them  lay,  to  settle  the  premises  at  such 
great  pains  and  expense,  and  having,  from  time  to  time, 
sustained  such  great  losses  therein,  as  aforesaid,  and  be- 
ing resolved  to  complete  the  same  with  all  possible 
speed,  which  they  humbly  apprehend  will  be  of  great 
advantage  to  the  trade  of  this  kingdom ;  the  petitioner, 
therefore,  in  behalf  of  himself,  and  of  the  said  Colonel 
Hutchinson  and  Mr.  Walcot,  most  humbly  prayed  His 
Majesty  to  send  the  necessary  orders  or  instructions  to 
the  said  Colonel  Dunbar,  not  to  intermeddle  or  molest 
the  petitioner  and  the  said  Colonel  Hutchinson  and  Mr. 
Walcot,  in  the  said  premises,  to  which  they  are  entitled 
as  aforesaid  ;  and  that  the  said  Colonel  Dunbar  do  not 


120  OPINIONS  OP  EMINENT  LAWYERS. 

obstruct  or  disturb  them,  their  tenants  and  agents,  in 
carrying  on  their  settlements,  on  any  pretense  whatso- 
ever; and  that  the  petitioner  and  the  said  Colonel 
Hutchinson  and  Mr.  Walcot,  may  be  quieted  in  the  pos- 
session thereof,  under  the  government  of  His  Majesty's 
Province  of  the  Massachusetts,  and  may  be  at  lib- 
erty to  proceed  in  settling  the  premises,  without  mo- 
lestation. 

The  said  petition  of  Samuel  Waldo,  on  behalf  of  Eli- 
sha  Cook,  Esq.,  and  others,  sets  forth,  that  the  Council 
established  at  Plymouth,  for  the  planting,  ruling,  order- 
ing and  governing  New  England,  in  America,  by  deed- 
poll,  under  their  common  seal,  and  signed  by  Robert, 
then  Earl  of  Warwick,  did  grant,  bargain,  sell,  enfeoff, 
allot,  assign  and  confirm  unto  John  Beauchamp  and 
Thomas  Leveret,  their  heirs,  associates,  and  assigns,  all 
and  singular,  those  lands,  tenements,  and  hereditaments 
whatsoever,  with  the  appurtenances  thereof,  in  New 
England,  aforesaid,  which  are  situate,  lying  and  being 
within  or  between  a  place  there,  commonly  called  or 
known  by  the  name  of  Muscongus,  towards  the  south 
or  south-west,  and  a  straight  line  extending  from  thence 
directly  ten  leagues  up  into  the  main  land  and  continent, 
towards  the  great  sea,  commonly  called  the  South  Sea, 
and  the  utmost  limits  of  the  space  to  ten  leagues  on  the 
north-north-east  of  a  river  in  New  England,  aforesaid,  com- 
monly called  Penobscott,  towards  the  north  and  north- 
east and  the  great  sea,  commonly  called  the  Western 
Ocean,  towards  the  East,  and  a  straight  and  a  direct  line 
extending  from  the  most  western  part  and  point  of  the 
said  straight  line,  which  extends  from  Muscongus  afore- 
said, towards  the  South  Sea,  to  the  uttermost  northern 
limits  of  the  said  ten  leagues  on  the  north  side  of  the 


THE  KING'S  PREROGATIVE  ABROAD.         121 

said  river  of  Penobscott  towards  the  west,  and  all  lands, 
grounds,  woods,  soils,  rivers,  waters,  fishings,  heredita- 
ments, profits,  commodities,  privileges,  franchises,  and 
emoluments,  whatsoever,  situate,  lying  and  being,  arising, 
happening  or  renewing  within  the  limits  and  bounds 
aforesaid,  or  any  of  them,  together  with  all  Islands  that 
lie  and  be  within  the  space  of  three  miles  of  the  said  lands 
and  premises,  or  any  of  them,  to  have  and  to  hold,  all 
and  singular,  the  said  lands,  tenements,  hereditaments 
and  premises,  whatsoever,  with  the  appurtenances,  and 
every  part  and  parcel  thereof,  unto  the  said  John  Beau- 
champ,  and  Thomas  Leveret,  their  heirs,  associates  and 
assigns,  forever,  to  be  holden  of  the  then  King's  most  ex- 
cellent Majesty,  his  heirs  and  successors,  as  of  his  manor 
of  East  Greenwich,  by  fealty  only,  and  not  in  capite,  nor 
by  knight's  service,  yielding  and  paying  unto  his  said 
Majesty,  his  heirs  and  successors,  the  fifth  p'art  of  all 
such  ore  of  gold  and  silver,  as  should  be  gotten  and  ob- 
tained in  or  upon  the  premises. 

That,  under  this  grant,  the  said  John  Beauchamp  and 
Thomas  Leveret  entered  on,  and  were  actually  possessed 
in  their  demesne,  as  of  fee  of,  and  in,  the  said  tract  of 
land  thereby  conveyed  to  them,  and  made  very  consid- 
erable settlements  and  improvements  thereon  ;  but  on  the 
breaking  out  of  the  great  war  with  the  Indians,  in  1675, 
their  said  settlements,  together  with  all  that  part  of  the 
country,  were  destroyed,  and  which  war  held  till  the 
time  of  the  treaty  of  Utrecht,  saving  only,  that  there 
might  be,  during  that  time,  some  intermissions  therein, 
but  as  the  same  were  very  short  and  precarious,  there 
was  no  possibility  of  attempting  any  settlements,  during 
such  intervals. 

That   the   said   Thomas   Leveret  survived  the   said 
17 


122  OPINIONS    OF  EMINENT    LAWYERS. 

John  Beauchamp,  by  virtue  whereof  he  became  solely 
entitled  to  the  benefit  of  the  said  grant ;  and  on  his  de- 
cease, all  the  said  lands  and  premises  became  vested  in 
the  said  John  Leveret,  son  of  the  said  Thomas  Leveret, 
the  surviving  grantee,  to  whom  the  petitioner,  Mary 
Rogers,  is  heir  at  law. 

That  Sir  William  Phipps,  then  Governor  of  New  Eng- 
land, not  knowing,  as  it  is  presumed,  of  the  said  John 
Leveret's  right  to  the  said  land,  treated  and  agreed  with 
Madakowando,  who  was  Sagamore,  or  Chief  Sachem,  or 
King,  of  the  Penobscott  Indians,  for  the  purchase  thereof, 
and  accordingly  the  said  Madakowando,  for  a  valuable 
consideration,  by  his  deed-poll,  dated  the  9th  of  May, 
1691,  granted,  released,  confirmed,  enfeoffed,  bargained 
and  sold  the  said  lands  and  premises,  to  the  said  Sir  Wil- 
liam Phipps  in  fee,  which  deed  was  afterwards,  viz :  the 
10th  of  May,  1694,  personally  acknowledged  by  the  said 
Madakowando,  before  two  of  the  members  of  his  then 
Majesty's  Council  of  Massachusetts  Province,  and  has 
been  since  acknowledged  and  allowed  of  by  the  Chief 
Sachems  of  the  Indians,  and  their  tribes,  and  particular- 
ly was  shown  to,  and  acknowledged,  and  allowed  of,  by 
them,  so  lately  as  the  4th  day  of  August,  1726. 

That  after  the  peace  of  Utrecht,  which  was  also  atten- 
ded by  a  peace  with  the  eastern  Indians  of  New  England, 
the  said  John  Leveret  formed  to  himself  an  intention  of 
resettling  the  said  land,  with  all  possible  vigor  and  dis- 
patch ;  but,  in  regard,  all  the  old  settlements  were  de- 
molished ;  apprehending  the  undertaking  too  extensive 
for  a  single  person,  he  invited  and  agreed  with  several 
gentlemen  of  considerable  substance  and  fortune,  to  as- 
sociate and  join  with  him  therein ;  and  having  brought 
his  designs  to  a  degree  of  maturity,  in  the  year  1719, 


THE  KING'S  PREROGATIVE  ABROAD.        123 

that  nothing  might  lie  in  his  way,  and  to  remove  all  pos- 
sible obstructions,  and,  as  an  additional  strength  to,  and 
confirmation  of  his  title,  and  thereby  the  more  to  en- 
courage his  associates  to  carry  on  the  said  settlements 
with  spirit  and  vigor,  the  said  John  Leveret  treated  and 
agreed  with  Spencer  Phipps,  Esq.,  adopted  son  and  heir, 
and  also  devisee  of  the  said  Sir  Wm.  Phipps,  to  purchase 
out  his  interest  in  the  said  premises  *  and,  accordingly, 
the  said  Spencer  Phipps,  by  his  deed-poll,  endorsed  on 
the  said  Indian  purchase-deed,  and  bearing  date  the  13th 
day  of  August,  17 19,  for  a  full  and  valuable  consideration, 
released,  assigned,  conveyed  and  confirmed  to  the  said 
John  Leveret,  as  well  the  said  deed  from  the  said  Mada- 
kowando  to  the  said  Sir  Wm.  Phipps,  as  also  all  the 
tracts  and  parcels  of  land  thereby  granted  and  conveyed 
to  the  said  Sir  Win.  Phipps,  and  which  are  mentioned 
in  the  said  deed,  to  be  then  in  the  seisin  and  possession 
of  the  said  Leveret,  his  heirs  and  assigns,  to  his  and 
their  only  proper  use  and  benefit,  forever. 

That  the  said  John  Leveret  having  thus  a  secure  title 
in  him  to  the  said  tract  of  land,  both  by  grant  from  the 
Crown,  and  by  purchase  from  the  Indians,  which  is  al- 
ways held  inviolable  in  these  parts,  and  having  associa- 
ted several  gentlemen  of  considerable  fortune  to  join 
with  him  in  settling  and  improving  these  lands,  for  the 
better  effecting  the  same,  the  said  John  Leveret,  by 
deed  of  association,  bearing  date  the  14th  day  of  August 
1719,  admitted  and  joined  the  petitioners,  Elisha  Cook, 
Nathaniel  Hubbard,  Hannah  Davis,  Rebecca  Lloyd,  Sa- 
rah Byfield,  John  Radford  and  Spencer  Phipps,  as  asso- 
ciates, to  and  with  himself,  in  the  said  lands  and  prem- 
ises, conveying  to  each  of  them  such  parts  and  shares  of 
the  said  land,  as  in  the  said  deed  is  particularly  men- 


124  OPINIONS  OP  EMINENT  LAWYERS. 

tioned  ;  and  by  another  deed  of  association,  bearing  date 
the  15th  day  of  the  same  month  of  August,  between  the 
said  John  Leveret  and  the  last  named  petitioners  of  the 
one  part,  and  the  petitioners,  Jahaleel  Brenton,  John 
Clark,  Samuel  Brown,  Thos.  Fitch,  whose  right  is  vest- 
ed in  the  petitioners,  John  Fitch,  Adam  Winthrop, 
Samuel  Thaxton,  Oliver  Noise,  Stephen  Minott,  Antho- 
ny Stoddard,  Thomas  Westbrook,  Thomas  Smith,  John 
Smith,  Joseph  Appleton,  whose  right  is  now  vested  in 
the  petitioners,  Nathaniel  Appleton,  Thomas  Fairweath- 
er,  Henry  Franklyn,  Gilbert  Bant,  Benjamin  Bronsdon, 
William  Clarke,  John  Oulton,  Jonathan  Waldo,  Corne- 
lius Waldo  and  John  Jeffries,  of  the  other  part,  reciting 
the  several  deeds  aforesaid,  the  said  last  named  petition- 
ers and  those  under  whom  they  claim,  as  aforesaid,  are 
admitted  and  joined  together,  as  associates  in  the  said 
land  and  premises,  and  such  parts  thereof  allotted  to 
them,  as  in  the  said  last  deed  is  particularly  mentioned, 
the  whole  to  be  divided  into  thirty  equal  parts,  to  be 
holden  by  all  the  said  petitioners,  and  those  under  whom 
they  claim,  as  aforesaid,  their  respective  heirs  and  as- 
signs forever,  as  tenants  in  common,  and  to  be  no  survi- 
vorship, with  proper  covenants,  each  obliging  the  other 
to  procure  people  to  plant,  settle  and  inhabit  two 
towns,  of  eighty  families  each,  in  a  Christian  manner,  in 
and  upon  the  said  tract  of  land,  under  such  limitations, 
conditions  and  reservations,  as  in  the  said  deed  is  ex- 
pressed ;  and  to  erect  two  saw-mills  on  the  said  land  ; 
and  for  the  better  ordering  and  regulating  the  said  de- 
signed settlements,  it  was  covenanted  and  agreed  that 
the  extent  of  the  said  two  towns  should  be  described,  and 
that  the  same  should  be  laid  out  in  a  regular  and  defensible 
manner,  upon  St.  George's  River,  and  that  proper  lots  in 


THE  KING'S  PREROGATIVE  ABROAD.         125 

each  town  should  be  set  apart  for  a  minister  and  a  school 
unalienable,  and  that  lands  should  also  be  set  apart,  to 
be  bestowed  on  the  settlers  in  the  said  townships,  with 
covenants  for  Jhe  association  to  do  the  utmost  for  the 
completing  and  perfecting  the  said  designed  settle- 
ments. 

That  the  rest  of  the  petitioners  have  since  purchased 
several  parts  of  shares  from  the  other  petitioners  in  the 
said  lands. 

That,  hereupon,  the  petitioners  and  those  under  whom 
they  claim  immediately,  began  on  making  the  said  set- 
tlements, and  soon  after  they  agreed  to  have  as  much 
land  broke  up  and  cultivated  as  would  accommodate  a 
sufficient  number  of  families  for  two  more  towns,  to  con- 
sist each  of  eighty  families  at  least,  and  the  houses  for 
their  reception  to  be  made  comfortable  ;  and  in  order  to 
prosecute  and  effectually  bring  forward  the  said  intend- 
ed settlements,  they  built  and  finished  two  strong,  large 
block-houses,  with  a  covered  way  from  them  to  the  wa- 
ter side,  to  secure  the  men  from  the  incursions  and  inju- 
ries of  the  Indians,  who  daily  resorted  there  in  great 
numbers,  and  ofttimes  threatened  those  employed  in  build- 
ing and  clearing  the  land,  who  used  several  stratagems 
to  get  them  from  off  those  lands;  and  the  petitioners  also 
built  a  double  saw-mill  to  facilitate  the  .settlements,  and 
bought  a  sloop,  and  hired  men  to  transport  people  and 
their  effects,  besides  several  other  sloops  employed  by 
them  in  the  said  undertaking ;  and  had,  for  about  twelve 
months,  a  captain  and  20  soldiers,  whom  they  paid  and 
subsisted  in  the  said  block-houses,  and  who  were  pro- 
vided with  great  and.  small  artillery  to  defend  them- 
selves and  the  workmen  from  the  attacks  of  the  French 
Indians,  at  the  sole  charge  of  the  said  association. 


126  OPINIONS  OF  EMINENT  LAWYERS. 

That  by  this  means,  notwithstanding  the  great  many 
disturbances  they  received  from  the  French  Indians,  the 
petitioners  very  vigorously  pushed  forward  in  settling 
and  bringing  those  lands  into  a  capacity  of  receiving  and 
securing  a  number  of  inhabitants,  and  actually  built  and 
erected  several  houses  thereon. 

That  in  June,  1721,  the  French  Indians,  to  the  num- 
ber of  200,  surprised,  took  and  burnt,  one  of  the  peti- 
tioners' sloops,  and  killed  one  of  their  men,  and  took  six 
captive,  and  then  immediately  made  up,  in  a  body,  to  the 
block-houses,  and  the  next  day  attacked  them  with 
fire-arms  for  several  hours,  and  used  several  devices  to 
have  burnt  the  block-houses,  but  were  defeated  by  the 
courage  of  the  men  employed  by  the  petitioners  ;  but  in 
this  attack  the  petitioners  were  great  sufferers,  the  In- 
dians having  killed  one  and  taken  six  prisoners,  burnt 
their  saw-mill,  a  large  sloop  and  sundry  houses,  and  kill- 
ed many  of  their  cattle  ;  but  notwithstanding  this  great 
destruction  made  on  the  petitioners,  they  still  kept  and 
maintained  the  two  block-houses  with  men  and  warlike 
stores  and  provisions,  for  several  months  afterwards,  al- 
though the  government  of  the  Massachusetts  had  pro- 
claimed war  with  these  Indians,  and  the  other  eastern 
tribes. 

That  the  petitioners,  being  by  this  war  incapacitated 
from  pursuing  the  settlements  they  had  so  successfully 
begun,  were  obliged  to  desist  therefrom  ;  but  they  yet 
held  the  two  block-houses,  and  defended  the  same  against 
a  siege  laid  to  it  by  the  Indians,  for  twelve  days  togeth- 
er, and  killed  twenty  of  the  enemy ;  and  apprehending 
the  same  might  be  of  great  service  to  the  Massachusetts 
government,  in  carrying  on  the  war,  they  made  a  tend- 
er of  them  to  the  government  there,  during  the  war, 


THE  KING'S   PREROGATIVE  ABROAD.  127 

and  until  the  petitioners  should  have  occasion  to  use 
them  for  the  purposes  at  first  designated  ;  which  offer 
the  government  accepted,  and  to  whom  they  proved  of 
great  service  in  the  war,  and  were  the  sole  means  of 
keeping  that  part  of  the  country  from  falling  into  the 
hands  of  the  Indians,  and  have  ever  since  continued  un- 
der the  protection  of  the  government;  and  since  the  war 
ended,  a  truck-house  is  erected  in  the  block-houses, 
which  are  used  as  magazines,  or  store-houses,  for  Indian 
goods. 

That,  on  the  ending  of  that  war,  the  petitioners  again 
resolved  to  continue  and  go  on  with  their  said  settle- 
ments, and  for  that  purpose  they  applied  for  and  obtain- 
ed a  letter  from  Samuel  Shute,  Esq.,  then  Governor  of  the 
Massachusetts  Bay,  to  the  Chief  of  the  said  Penobscot  In- 
dians, to  facilitate  the  petitioners'  going  on  with,  and 
finishing  their  said  settlements.  But  soon  afterwards  an- 
other war  broke  out  with  those  Indians,  which  then  pre- 
vented the  petitioners'  proceeding  further  in  their  intend- 
ed settlements  ;  but  a  peace  being  again  concluded  with 
them,  some  short  time  before  Mr.  Burnet's  coming  to 
that  government,  the  petitioners,  being  still  intent  and 
resolved  on  bringing  forward  and  finishing  the  said  set- 
tlements, obtained  a  like  letter  from  Governor  Burnet, 
as  they  had  before  done  from  Governor  Shute,  and  were 
going  on  to  settle  and  improve  those  lands  with  all  pos- 
sible vigor  and  despatch,  and  had  actually  got  a  minister 
and  120  families  ready  to  go  and  settle  in  one  of  the  said 
intended  towns.  But  to  their  great  surprise,  disappoint- 
ment and  loss,  the  petitioners  have  met  with  an  inter- 
ruption herein,  from  David  Dunbar,  Esq.,  Surveyor- 
General  of  His  Majesty's  woods  in  America ;  who,  be- 
ing waited  on  by  a  number  of  the  petitioners,  hath  for- 


128  OPINIONS  OP  EMINENT  LAWYERS. 

bid  the  petitioners  from  going  on  with  the  said  settle- 
ments, and  informed  the  petitioners,  that  he  could  not 
permit  their  going  on  with  their  settlements,  on  any 
other  terms,  but  their  taking  grants  from  him,  in  the 
same  manner  as  if  they  had  not  already  any  title  there- 
to ;  upon  which  the  petitioners  informed  Mr.  D unbar, 
that  they  thought  it  their  duty  to  lay  before  His  Ma- 
jesty, the  matters  aforesaid,  and  Mr.  Dunbar  promised 
the  petitioners  not  to  intermeddle  with  the  said  lands, 
till  His  Majesty's  pleasure  should  be  known. 

Therefore,  and  as  the  petitioners  have  so  clear  a  title 
to  their  lands,  both  by  grant  from  the  Crown  and  pur- 
chase from  the  natives,  and  have  had  the  possession 
thereof  for  so  many  years,  and  been  at  a  very  great  ex- 
pense in  erecting  the  block-houses  and  several  other 
buildings  thereon,  and  defending  the  same  in  the  man- 
ner before  stated,  and  their  endeavors  and  attempts  to 
improve  and  settle  the  same,  which  had  been  long  since 
completed  by  the  petitioners,  but  from  the  unavoidable 
interruptions  given  them  by  the  wars  ;  but  have  always, 
by  means  of  their  block-houses,  kept  the  possession 
thereof,  and  thereby  guarded  and  protected  all  that  part 
of  the  country  ;  and  as  the  petitioners  are  determined 
to  complete  the  said  settlement  with  all  possible  despatch, 
which  being  of  great  advantage  to  the  Province  of  the 
Massachusetts,  and  His  Majesty's  interest  there ;  the 
petitioners,  in  consideration  of  the  premises,  most  hum- 
bly prayed  His  Majesty,  that  His  Majesty  would  be 
pleaded  to  send  the  necessary  order  or  instructions  to 
the  said  David  Dunbar,  not  to  intermeddle  with  the  said 
tract  of  land  to  which  the  petitioners  are  so  entitled, 
as  aforesaid ;  and  that  he  do  not  interrupt,  obstruct  or 
disturb  the  petitioners,  in  carrying  on  their  settlements 


THE  KING'S  PREROGATIVE  ABROAD.         129 

there,  on  any  pretense  whatsoever ;  that  so  the  peti- 
tioners may  be  quieted  in  the  enjoyment  thereof,  and 
carry  on  the  settlements  intended  by  them,  without  mo- 
lestation. 

And  we  certify  your  Lordships,  that  we  have  been 
attended  by  .Mr.  Paxton,  Solicitor  for  the  affairs  of  His 
Majesty's  Treasury,  and  by  the  respective  agents  of  the 
Province  of  the  Massachusetts  Bay,  in  New  England, 
and  of  the  petitioners,  and  have  heard  counsel  on  be- 
half of  the  Crown,  and  of  all  the  said  parties  ;  at  which 
hearing,  was  laid  before  us,  a  copy  of  the  Charter 
granted  by  their  late  Majesties,  King  William  and 
Queen  Mary,  on  the  7th  day  of  October,  in  the  third 
year  of  their  reign,  to  the  inhabitants  of  the  said  Pro- 
vince of  the  Massachusetts  Bay,  and  the  several  affida- 
vits hereunto  annexed,  together  with  copies  of  divers 
conveyances,  of  particular  parcels  of  land  tying  within 
the  tract  in  question,  which  were  certified  under  the 
seal  of  the  said  Province. 

Upon  considering  the  said  case  and  petitions,  and  the 
evidence  laid  before  us,  and  what  was  alleged  on  all 
sides,  it  appears  to  us,  that  all  the  said  tract  of  lands, 
lying  between  the  rivers  of  Kemiebeck  and  St.  Croix, 
is  (amongst  other  things,)  granted,  by  the  said  Charter, 
to  the  inhabitants  of  the  said  Province,  and  that,  there- 
by, power  is  given  to  the  Governor  and  General  Assem- 
bly of  the  said  province,  to  make  grants  of  land  within 
the  said  limits,  subject  to  a  proviso,  that  no  such  grants 
should  be  of  any  force,  until  their  said  late  Majesties, 
their  heirs  or  succcessors,  should  have  signified  their  ap- 
probation of  the  same. 

It  appears  also,  by  the  said  Charter,  that  the  right  of 
18 


130  OPINIONS  OF  EMINENT  LAWYERS. 

government,  granted  to  the  said  Province,  extends  over 
this  tract  of  land, 

It  doth  not  appear  to  ns,  that  the  inhabitants  of  the 
said  Province  have  been  guilty  of  any  neglect  or  refusal 
to  defend  this  part  of  the  country,  as  can  create  a  for- 
feiture of  that  subordinate  right  of  government  of  the 
same,  or  of  such  property  in  the  soil  as  was  granted  to 
them  by  the  said  Charter ;  it  being  sworn  by  several 
of  the  said  affidavits,  that  a  fort  was  erected  there,  and 
for  some  time  defended  at  the  charge  of  the  Province, 
and  that  magistrates  and  Courts  of  Justice  have  been 
appointed  within  this  district,  and  that  one  of  the  Coun- 
sel of  the  Province  hath  always  been  chosen  of  this 
division  'r  and  though  it  is  certain,  that  this  part  of  the 
Province  hath  not  been  improved  equally  with  other 
parts  thereof,  yet,  considering  the  vast  extent  of  coun- 
try granted  by  this  Charter,  and  the  great  improve- 
ments made  in  several  parts  of  it,  we  conceive  that 
will  not  create  a  forfeiture,  because,  in  such  casesr  it  is 
not  to  be  expected,  that  the  whole  should  be  cultivated 
and  improved  to  the  same  advantage  ;  and  whether 
there  hath  been  such  a  neglect,  or  non-user  of  any  partr 
as  may  amount  to  a  forfeiture,  must  be  judged  of,,  not 
upon  the  particular  circumstances  attending  that  part 
only,  but  upon  the  circumstances  of  the  whole. 

And  if  the  Province  had  incurred  any  forfeiture  in  the 
present  case,  no  advantage  could  be  taken  thereof,  but 
by  a  legal  proceeding,  by  scire  facias,  to  repeal  their 
Charter,  or  by  inquisition,  finding  sucli  forfeiture. 

As  to  the  question,  stated  in  the  case,  upon  the  effect 
of  the  conquest  of  this  tract  of  country  by  the  French, 
and  the  reconquest  thereof  by  General  Nicholson,  we 


THE  KING'S   PREROGATIVE  ABROAD.  131 

conceive  that  the  said  tract,  not  having  been  yielded  by 
the  Crown  of  England  to  France,  by  any  treaty,  the 
conquest  thereof  by  the  French,  created,  according  to 
the  law  of  nations,  only  a  suspension  of  the  property  of 
the  former  owners,  and  not  an  extinguishment  of  it:; 
and  that,  upon  the  recon quest  by  General  Nicholson, 
all  the  ancient  right,  both  of  the  Province  and  of  pri- 
vate persons,  subjects  of  the  Crown  of  Great  Britain,  did 
revive,  and  were  restored  jure  poslliminii.  This  rule 
holds  the  more  strongly  in  the  present  case,  in  regard,  it 
appears  by  the  affidavits,  that  the  Province  joined  their 
forces  to  those  which  came  thither,  under  the  command 
of  General  Nicholson  in  this  service. 

For  these  reasons,  we  are  of  opinion,  that  the  said 
Charter  still  remains  in  force,  and  that  the  Crown  hath 
not  power  to  appoint  a  particular  Governor  over  this 
part  of  the  Province,  or  to  assign  lands  to  persons  desi- 
rous to  settle  there  ;  nor  can  the  Province  grant  those 
lands  to  private  proprietors,  without  the  approbation  of 
the  Crown,  according  to  the  Charter. 

As  to  the  case  of  the  petitioners,  in  the  two  petitions 
referred  to  us,  who  insist  on  particular  titles  in  them- 
selves, to  certain  parcels  of  lands  lying  within  the  dis- 
trict in  question :  we  have  examined  into  their  claims, 
and  find,  by  the  above-mentioned  copies  of  deeds  and 
writings  produced  by  them,  that  several  of  the  petition- 
ers and  those  under  whom  they  claim,  have  had  con- 
veyances made  to  them,  of  several  of  the  said  par- 
cels of  land,  some  from  the  Council  of  Plymouth,  which 
was  constituted  by  Charter  in  the  reign  of  King  James 
the  First,  and  whose  grants  were  confirmed  by  the 
Charter  of  King  William  and  Queen  Mary,  and  others 
from  Indians,  pretending  to  be  the  owners  thereof,  un- 


132  OPINIONS  OP  EMINENT  LAWYERS. 

der  which  large  sums  of  money  appear,  by  the  said  affi- 
davits, to  have  been  laid  out  in  endeavoring  to  settle 
and  improve  the  lands  therein  comprised,  several  of 
which  sums  were  expended  not  many  years  ago  ;  par- 
ticularly a  sum  of  £2,000  by  Sir  Bibye  Lake,  in  the 
year  1714,  and  other  sums  of  money  by  others  of  the 
petitioners,  in  the  years  1719  and  1720.  And  though 
these  settlements  and  improvements  have  been  in  great 
measure  interrupted  and  defeated  by  frequent  wars  and 
incursions  of  the  Indians,  yet  several  of  the  petitioners, 
or  their  tenants,  appear  to  be  still  in  the  possession  of 
some  parts  of  the  said  tract  of  land. 

Some  objections  were  made  before  us,  to  the  nature 
of  the  grants  and  conveyances  under  which  the  peti- 
tioners claimed,  and  the  manner  of  deducing  down 
their  titles  ;  but  we  conceive,  that  in  questions  of  this 
kind,  concerning  rights  to  lands  in  the  West  Indies,  and 
upon  enquiries  of  this  nature,  the  same  regularity  and 
exactness  is  not  to  be  expected  as  in  private  suits  con- 
cerning titles  to  lands  in  England,  but  that  in  these 
cases,  the  principal  regard  ought  to  be  had  to  the  posses- 
sion and  the  expenses  the  parties  have  been  at,  in  en- 
deavoring to  settle  and  cultivate  such  lands. 

Therefore,  upon  the  whole  matter,  we  are  of  opinion, 
that  the  petitioners,  their  tenants  or  agents,  ought  not 
to  be  disturbed  in  their  possession,  or  interrupted  in 
carrying  on  their  settlements  in  the  lands  granted  to 
them,  within  the  district  in  question. 

P.    YORKE. 

August  11,  1731,  C,  TALBOT. 


THE  KING'S  PREROGATIVE  ABROAD.  133 

(12.)  Of  the  King1 8  right  to  the  woods  in  the  Province 
of  Maine,  by  Mr.  West. 

To  the  Right  Hon.,  the  Lords  Commissioners,  for  Trade 

and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  of  the  several  papers  relating  to 
the  memorial  of  John  Bridger,  Esq.,  Surveyor-General 
of  His  Majesty's  woods  in  America,  and  I  do  find  that 
the  title  which  Mr.  Elisha  Cook  doth,  by  his  memorial, 
claim  to  be  in  the  Province  of  Massachusetts  Bay,  in 
opposition  to  the  right  of  His  Majesty,  to  all  trees  fit 
for  masts,  of  the  diameter  of  twenty-four  inches  and 
upwards  at  twelve  inches  from  the  ground,  growing 
within  the  Province  of  Maine,  in  America,  is  founded 
upon  a  supposed  purchase  of  the  said  Province  of  Maine, 
by  the  Province  of  the  Massachusetts  Bay,  of  and  from 
the  assignees  of  Sir  Ferdinando  Gorges,  the  person  to 
whom  the  said  Province  was  originally  granted  from  the 
Crown. 

I  must  beg  leave  to  observe  to  your  Lordships,  that 
King  Charles  the  First  did  incorporate  the  assignees  of 
the  patent,  which  King  James  the  First  did,  in  the 
eighteenth  year  of  his  reign,  grant  to  the  Council  estab- 
lished at  Plymouth,  in  the  county  of  Devon,  by  the  name 
of  the  Governor  and  Company  of  the  Massachusetts 
Bay,  in  New  England,  by  which  Charter  the  said  King 
did  grant  unto  the  said  corporation,  power,  to  have,  take, 
possess,  acquire  and  purchase  any  lands,  tenements  or 
hereditaments,  or  any  goods  or  chattels,  and  the.  same  to 
lease,  grant,  demise,  alien,  bargain,  sell  and  dispose  of, 
as  other  our  liege  people  of  this  our  realm  of  England, 


134  OPINIONS  OF  EMINENT  LAWYERS. 

or  other  corporation  or  body  politic  of  the  same,  may 
lawfully  do. 

In  the  fifteenth  year  of  King  Charles  the  First,  the 
Province  of  Maine  was  granted  to  Sir  Ferdinando 
Gorges,  his  heirs  and  assigns,  which  Province  did  de- 
scend unto  Ferdinando  Gorges,  son  and  heir  of  John 
Gorges,  who  was  son  and  heir  of  the  said  Sir  Ferdi- 
nando Gorges,  which  Ferdinando  Gorges  did,  in  the  year 
1677,  in  consideration  of  the  sum  of  one  thousand  two 
hundred  and  fifty  pounds,  give  and  grant  all  his  right 
and  title  in  and  to  the  said  Province,  unto  John  Usher, 
of  Boston,* merchant,  his  heirs  and  assigns;  but  whether 
it  was  by  way  of  absolute  sale,  or  way  of  mortgage, 
doth  not  appear ;  and  the  said  John  Usher  did,  after- 
wards, in  the  year  1678,  convey  the  same  unto  the  said 
corporation,  as  appears  by  the  printed  journal  of  the 
House  of  Representatives  of  that  Province  which  was 
sent  to  me  by  Mr.  Dummer,  their  agent.  It  may,  my 
Lords,  be  made  a  question  in  law,  whether  that  corpo- 
ration, which  was  created  by  King  Charles  the  First, 
could  legally  purchase  the  said  Province  of  Maine,  inas- 
much as  the  clause  of  license  does  go  no  further  than 
that  they  might  purchase  lands,  &c.,  as  any  other  cor- 
poration or  body  politic  in  England  might  lawfully  do  ; 
and  take  it  to  be  clear  law,  that  no  corporation  whatso- 
ever, in  England,  can  purchase  any  lands  which  shall 
inure  to  themselves,  unless  an  express  license  for  that 
purpose  be  inserted  in  their  Charter  of  incorporation,  or 
otherwise.  Your  Lordships  will  be  pleased  to  observe, 
that  this  corporation  is,  by  the  Charter,  only  subjected 
to  the  same  laws  as  the  corporations  in  England  are  ; 
and  that  there  is  no  license  to  purchase  lands  granted  to 
them  by  express  words.  I  need  not  observe  to  your 


THE   KING'S  PREROGATIVE  ABROAD.  135 

Lordships,  that  nothing  but  express  words  is,  in  law, 
sufficient  to  taKe  away  the  King's  prerogative ;  but,  in- 
deed, I  should  not  have  made  use  of  any  argument  of 
this  nature,  did  I  not  think  the  maintaining  the  royal 
prerogative,  in  relation  to  the  naval  stores  in  America, 
of  the  utmost  consequence  to  the  kingdom ;  and  that, 
therefore,  any  advantage  in  point  of  law,  ought  to  be 
taken,  which  does  not  injure  any  private  persons, 

But,  admitting  that  corporation  was  fully  enabled  to 
purchase  lands,  yet  that  corporation  is  now  extinguished, 
for  the  patent  4°  Caroli  primi,  was,  in  the  year  1684,  re- 
versed in  Chancery,  by  a  judgment  upon  a  scire  facias, 
and  consequently  the  Province,  which  was  granted  to 
that  corporation,  and  all  lands  purchased  by  that  corpo- 
ration, were  revested  in  the  Crown  ;  and,  therefore,  the 
inhabitants  of  New  England  can  be  no  otherwise  enti- 
tled unto  the  Province  of  Maine,  than  by  some  new  title 
which  must  have  accrued  unto  them  subsequent  to  their 
incorporation  by  King  William,  which  it  is  impossible 
ever  should  have  been,  since  there  is  no  license  granted 
unto  them  to  purchase  lands  in  or  by  their  last  Charter. 
Their  last  Charter  was  granted  by  the  late  King  Wil- 
liam, in  the  third  year  of  his  reign,  in  which  Charter,  it 
is  observable,  that  there  is  not  a  variation,  in  the  name 
of  the  incorporation,  but  in  the  thing  itself.  And  so  far 
is  the  old  corporation  from  being  revived,  that,  by  this 
Charter,  they  are  not  so  much  as  erected  into  a  corpo- 
ration or  body  politic,  so  as  to  be  able  to  sue  or  be  sued, 
&c. ;  but  the  very  terms  of  the  Charter  are,  that  the  King 
does  erect  and  incorporate  the  several  countries  men- 
tioned in  the  patent,  into  one  real  province,  by  the  name 
of  our  Province  of  the  Massachusetts  Bay,  in  New  Eng- 
land. It  is  plain,  to  demonstration,  that  King  William 


136  OPINIONS  OF  EMINENT  LAWYERS. 

did,  at  the  time  of  granting  this  patent,  consider  all  the 
countries  therein  named,  and  particlarly  the  Province  of 
Maine,  as  vested  in  himself,  in  the  right  of  his  Crown, 
and,  therefore,  he  does  unite  and  incorporate  all  those 
countries,  which  were  before  several  and  distinct,  into 
one  real  Province,  and  does  then  grant  all  the  lands  in- 
cluded in  that  Province,  unto  the  inhabitants  of  the 
Province  of  the  Massachusetts  Bay,  in  which  denomina- 
tion and  grant,  the  inhabitants  of  the  Province  of 
Maine,  &c.,  are  as  much  included  and  concerned  as 
grantees,  as  the  inhabitants  of  that  part  of  the  country, 
which  was  originally  and  singly  known  by  the  name 
of  the  Massachusetts  Bay;  all  these  Provinces,  there- 
fore, are  now  to  be  considered  as  one  ;  neither  is  it  pos- 
sible, that  one  part  of  the  Province  should  be  the  pri- 
vate property  of  another. 

It  is  true,  that  the  King  does  grant  a  power  unto  the 
General  Assembly  of  the  said  Province,  to  make  grants 
of  lands,  uncultivated,  lying  within  the  bounds  de- 
scribed in  and  by  the  Charter ;  but  that  grant  does  no- 
ways extend  to  one  part  of  the  Province  more  than  an- 
other, but  is  equal  to  them  all ;  and,  therefore,  subject  to 
the  last  clause  in  the  Charter,  by  which  all  trees  of  the 
before-mentioned  size,  are  reserved  to  the  Crown,  and, 
consequently,  the  General  Assembly  of  that  Province 
cannot  make  any  grant  of  lands  to  private  persons, 
without  their  being  subject  to  that  clause  of  reserva- 
tion. 

The  act  of  Parliament,  Nono  Anne,  page  387,  extends 
no  further  than  the  reservation  in  the  Charter  does,  only 
that  prerogative,  which  before  subsisted  singly  on  the 
Charter,  is  now  confirmed  and  established  by  authority 
of  Parliament ;  and  therefore,  upon  the  whole  matter, 


THE  KING'S  PREROGATIVE  ABROAD.  137 

I  am  of  opinion,  that  the  King  is  legally  entitled  to  all 
trees  of  the  prescribed  size,  growing  in  the  Province  of 
the  Massachusetts  Bay,  as  it  is  described  and  bounded 
in  the  Charter  of  King  William,  and  particularly  in  the 
Province  of  Maine,  excepting  only  those  trees  situated 
in  lands  which  were  legally  granted  to  private  persons 
before  the  Charter  4°  Caroli  Primi  was  reversed ;  and 
which  I  humbly  certify  to  your  Lordships. 

RICH.  WEST. 
November  12,  1718. 

(13.)  Mr.  Fane's  opinion  on  the  King's  right  to  the 
Woods  in  New  England. 
To  the  Right  Honorable  the  Lords  Commissioners  of 

Trade  and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  of  the  21st  of  June,  where- 
by your  Lordships  are  pleased  to  desire  my  opinion,  in 
point  of  law,  whether  the  Act  of  the  eighth  year  of  His 
present  Majesty,  for  the  further  encouragement  of  naval 
stores,  and  other  purposes  therein  mentioned,  whereby  it 
is  enacted,  for  the  preservation  of  white  pine  trees  for 
masting  the  royal  navy,  that  no  persons  within  the  colo- 
nies of  Nova  Scotia,  New  Hampshire,  the  Massachusetts 
Bay,  and  Province  of  Maine,  Rhode  Island  and  Provi- 
dence Plantation,  the  Narraganset  Country  or  King's 
Province  and  Connecticut,  in  New  England,  and  New 
York  and  New  Jersey,  in  America,  shall  cut,  fell  and 
destroy  any  white  pine  trees,  not  growing  in  any  town- 
ships or  the  bounds  thereof,  under  particular  penalties, 
whether  this  Act  does,  in  any  manner,  take  away  the 
right  the  Crown  hath  expressly  reserved  to  themselves 
19 


138  OPINIONS  OF  EMINENT  LAWYERS. 

in  the  Massachusetts  Charter,  of  all  trees,  of  the  diame- 
ter of  twenty-four  inches  and  upwards  at  twelve  inches 

* 

from  the  ground,  growing  upon  any  soil  or  tract  of  land 
in  the  said  Province,  not  heretofore  granted  to  any  pri- 
vate persons. 

I  have  considered  the  Act  of  Parliament  and  the 
Massachusetts  Charter,  and  I  apprehend  it  can  never  be 
supposed,  that  an  Act  of  Parliament,  made  on  purpose 
to  guard,  by  severe  penalties,  the  King's  right  and  pro- 
perty, in  one  particular  instance,  should,  by  a  strained 
and  distant  implication,  take  away  and  diminish  that 
right,  in  a  matter  noways  the  design  or  in  the  intention 
of  the  Legislature.  The  King,  by  a  general  severation 
in  his  Charter,  was  to  have  all  trees  of  such  a  growth, 
not  expressly  given  away  in  townships,  or  out  of  them  ; 
now  the  only  provision  made  by  the  Act  of  the  eighth 
of  the  King,  and  that,  I  think,  a  very  reasonable  and 
necessary  one,  was  to  prevent  his  trees,  out  of  townships, 
from  being  cut  down  ;  it  goes  no  further.  The  danger 
and  mischief  was,  that  such  trees  as  lay  out  of  town- 
ships, might,  without  any  discovery,  be  cut  down  and 
carried  away,  and,  therefore,  the  penalty  is  applied  and 
proportioned  to  the  ease  and  practicableness  of  doing  it, 
and  the  difficulty  of  having  evidence  to  convict  the 
offender.  This  is  the  scope  and  design  of  that  clause, 
and  it  meddles  with  nothing  else,  but  leaves  the  King's 
right  unimpeached  as  to  trees  in  townships,  which 
could  not,  probably,  be  cut  down  without  the  knowledge 
of  the  King's  officers,  and  where  there  could  be  no  like- 
lihood to  cut  down  such  trees,  being  such  as,  perhaps, 
were  very  necessary  for  shelter  or  ornament.  If  the 
words  of  the  Act  had  been,  no  license  shall  be  required 
but  for  trees  growing  out  of  townships,  that,  perhaps, 


THE  KING'S  PREROGATIVE  ABROAD.  139 

had  made  the  case  different ;  but  the  words  are,  no  per- 
son shall  fell,  cut  and  destroy  any  white  pine  trees,  not 
growing  in  any  townships,  so  that  the  cutting  of  trees 
out  of  townships,  without  license,  subjects  them  to  the 
punishment  inflicted  by  this  law,  whereas  the  cutting  of 
white  pine  trees  in  townships  makes  them  now  (the  Act 
of  the  9th  of  Queen  Anne  being  repealed  by  this  Act,) 
only  liable  to  an  information  for  the  trespass,  or  an  ac- 
count for  the  value  and  profits  of  the  trees ;  and  all  the 
difference  is,  the  King's  property  is  better  secured  out  of 
the  townships  than  within  them ;  but  still  the  King's  right 
to  such  trees  remains,  and  it  has  the  protection  and 
guard  of  the  common  law,  not  only  in  giving  a  remedy 
for  the  violation  of  it,  but  in  preventing  all  attempts  upon 
it,  by  that  known  rule  of  law,  that  no  implication  shall 
prevail  against  the  Crown's  interest  and  prerogative. 

FRAN.  FANE. 
July  19,  1726. 

(14.)  The  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Yorke  and  Talbot-,  on  the  King^s  right  to  the  woods 
in  New  England. 

To  the  Right  Honorable  the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  •; 

We  received  a  letter  from  Mr,  Popple,  written  by  your 
Lordships'  commands,  importing  that  in  the  Charter  of 
Massachusetts  Bay,  granted  by  King  William  and  Queen 
Mary,  in  the  third  year  of  their  reign,  there  is  an  express 
reservation  to  the  Crown,  of  all  trees  of  the  diameter  of 
twenty-four  inches  and  upwards  at  twelve  inches  from  the 
ground,  growing  upon  any  soil  or  tract  of  land  in  the  said 
Province,  not  heretofore  granted  to  any  private  persons  ; 


140  OPINIONS  OF  EMINENT  LAWYERS. 

that  this  reservation  in  behalf  of  the  Crown,  is  entirely 
destroyed  by  the  construction  which  the  people  of  New 
England  put  upon  the  5th  section  of  an  Act  passed,  in  the 
eighth  year  of  His  Majesty's  reign,  entitled  an  Act  giv- 
ing further  encouragement  for  the  importation  of  naval 
stores,  and  for  other  purposes  therein  mentioned,  where- 
by it  is  enacted,  for  the  preservation  of  *vhite  pine  trees 
for  masting  the  royal  navy,  that  no  persons  within  the 
colonies  of  Nova  Scotia,  New  Hampshire,  the  Massachu- 
setts Bay  and  Province  of  Maine,  Rhode  Island  and  Provi- 
dence Plantation,  the  Narraganset  Country,  or  King's  Pro- 
vince, and  Connecticut,  in  New  England,  and  New  York 
and  New  Jersey,  in  America,  shall  cut,  fell  and  destroy 
any  white  pine  trees,  not  growing  in  any  township,  or 
the  boundaries  thereof;  that  the  construction  they  put 
upon  this  paragraph  is,  that  trees  growing  within  any 
township  are  not  the  King's  property,  and,  consequent- 
ly, that  the  Surveyor-General  of  the  woods  has  no 
power  to  prevent  the  people  from  cutting  them  for  their 
own  use ;  that,  in  order  to  prevent  this  for  the  future, 
your  Lordships  desired  our  opinion,  in  point  of  law, 
whether  the  words  of  the  fore-mentioned  Act  of  Parlia- 
ment can  be  construed  to  take  away  the  right  reserved 
to  the  Crown,  by  the  fore-mentioned  Charter,  of  trees  of 
the  diameter  of  twenty-four  inches  at  twelve  inches  ' 
from  the  ground,  growing  in  any  township  1 

We  humbly  certify  your  Lordships,  that  we  are  of 
opinion,  nothing  contained  in  the  said  Act  of  Parlia- 
ment, can  be  construed  to  take  away  the  right  reserved 
to  the  Crown,  by  the  said  Charter,  as  to  trees  of  the  cli~ 
ameter  of  twenty-four  inches  at  twelve  inches  from  the 
ground,  whether  the  same  are  growing  within  or  out  of 
any  township,  the  intention  of  the  said  act  appearing  to 


THE  KING'S  PREROGATIVE  ABROAD.  141 

us  to  be,  to  make  a  larger  provision,  for  preservation  of 
white  pine  trees,  than  was  done  by  the  Charter,  by  pro- 
hibiting, under  severe  penalties,  the  cutting  down  such 
trees  growing  without  the  limits  described  in  the  Act, 
notwithstanding  they  might  happen  to  be  the  property 
of  private  persons,  and  of  dimensions  different  from 
those  described  4n  the  Charter,  without  His  Majesty's 
license  ;  but  we  conceive,  that  this  is  so  far  from  having 
weakened  or  prejudiced  any  particular  right,  vested  in 
the  Crown,  to  such  trees,  that  the  same  is  rather  secured 
thereby ;  since,  if  any  white  pine  trees  shall  be  cut 
down,  which  shall  happen  to  be  both  within  the  reserva- 
tion of  the  Charter,  and  the  prohibition  of  the  Act  of 
Parliament,  the  King  may  have  a  new  remedy  against 
the  offenders,  by  suing  for  the  penalties  inflicted  by  the 
Act,  in  the  summary  method  thereby  directed. 

P.  YORKE. 
December  23,  1726.  C.  TALBOT. 

(15.)  .Of  tJie  King's  right  to  mines  in  New  Jersey,  by 
the  Attorney  and  Solicitor,  'Raymond  and  Yorke. 

To  the  Right  Honorable  the   Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  and  requiring  us  to  consider  the 
annexed  extract  of  a  letter  from  Mr.  Burnet,  Governor 
of  New  Jersey,  dated  the  twelfth  day  of  December,  one 
thousand  seven  hundred  and  twenty-two,  in  relation  to 
gold  and  silver  mines  said  to  be  found  there,  and  to  re- 
port our  opinion,  in  point  of  law,  what  right  and  title 
is  remaining  to  His  Majesty,  in  the  said  gold  and  silver 


142  OPINIONS  OF  EMINENT  LAWYERS. 

mines,  and  how  far  the  present  proprietors  have  the 
right  in  the  said  mines,  according  to  their  several 
grants.  We  have  considered  the  case,  as  stated  in  the 
said  extract  of  the  letter  transmitted  to  us,  and  have 
looked  into  the  Charter  granted  to  the  proprietors  of 
New  Jersey,  and  do  certify  your  Lordships,  that  we  are 
of  opinion,  that  by  the  said  Charter,  orfiy  the  base  mines 
within  that  Province,  passed  to  the  grantees,  and  that 
the  words  of  the  grant  are  not  sufficient  to  carry  royal 
mines,  the  property  whereof  still  remains  in  the  Crown, 
notwithstanding  anything  that  has  appeared  to  us  ;  but 
we  beg  leave  to  inform  your  Lordships,  that  we  have 
not  heard  the  proprietors,  or  any  person  on  their  behalf, 
upon  the  subject  matter  of  this  reference,  not  being 
directed  by  your  Lordships  so  to  do. 

ROBT.  RAYMOND. 
November,  30,  1723.  P.  YORKE. 

(16.)  Of  the  'royal  right  of  Escheats  in  Virginia, 
by  the  Attorney  and  Solicitor-General,  Somers  and 
Trevor. 

May  it  please  your  most  excellent  Majesty ; 

In  obedience  to  an  order  of  Council,  hereunto  an- 
nexed, we  have  considered  of  the  question :  Whether 
escheats  in  Virginia  may  be  granted  before  they  actually 
accrue  '?  And  it  does  appear  to  us,  that  the  tenure,  by 
which  the  lands  in  Virginia  are  holden  of  the  Crown  of 
England,  is  in  free  and  common  soccage,  as  of  the 
manor  of  East  Greenwich.  The  consequence  of  this 
tenure  is,  that  where  any  person  dies  without  heirs,  his 
land  will  escheat  to  the  Crown,  as  having  the  imme- 
diate seigniory  ;  and  we  are  of  opinion,  that  escheats  of 


THE  KING'S  PREROGATIVE  ABROAD.  143 

this  nature  cannot  be  granted,  before  they  happen, 
otherwise  than  by  a  grant  or  alienation  of  the  seign- 
iory itself,  which,  we  suppose,  is  not  intended  to  be 
done. 

There  are  other  escheats  upon  attainder  of  treason, 
which  are  not  incident  to  the  tenure,  but  belong  to  the 
Crown,  (as  a  prerogative  royal,)  of  whomsoever  the 
land  be  holden.  It  seems  to  us  to  be  very  doubtful, 
whether  such  royal  escheats  may,  in  any  manner,  be 
granted  before  they  happen  ;  but,  if  that  might  be  done, 
we  are  humbly  of  opinion,  that  it  is  not  advisable  for 
the  Crown  to  part  with  such  a  right,  and  to  put  the 
forfeitures  for  treason  in  other  hands. 

J.  SOMERS. 

THOS.  TREVOR. 

(17.)  Of  the  peculia/i*  Escheats  in  New  Jersey,  which 
was  in  the  hands  of  Proprietaries,  by  the  Attorney-Gen- 
eral Northey. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  humble  obedience  to  your  Lordships'  commands, 
signified  to  me  by  Mr.  Popple,  Jr.,  your  Secretary,  I 
have  considered  of  the  annexed  letter  and  papers  there- 
with sent,  and  have  perused  the  letters  patent  and  sur- 
render, mentioned  in  the  said  letter  ;  and  am  of  opinion, 
that  the  fines,  forfeitures  and  escheats  in  New  Jersey 
belong  to  Her  Majesty,  and  not  to  the  proprietors  of  the 
soil  of  that  Colony  ;  for,  as  to  the  fines  and  forfeitures 
for  offences,  they  were  not  granted  to  His  late  Majesty, 
King  James  the  second,  when  Duke  of  York,  by  the  let- 
ters patent  granted  to  him  of  the  Jerseys  and  other 


144  OPINIONS    OF  EMINENT    LAWYERS. 

lands,  under  which  grants  the  present  proprietors 
claim.  And,  as  to  the  escheats,  the  whole  tract  was 
granted  in  fee  to  the  Duke  of  York,  to  be  holden  of  the 
King  in  common  soccage  as  of  his  manor  of  East 
Greenwich  ;  and  the  inheritance  of  part  being  granted 
away,  by  the  assignees  of  the  Duke,  to  other  persons 
in  fee,  they  hold  of  the  Queen,  and  not  of  the  propri- 
etors ;  and,  therefore,  the  escheat  must  be  to  Her  Ma- 
jesty. 

As  to  the  appointing  of  rangers  of  the  woods,  the  in- 
heritance of  those  woods  being  in  the  proprietors,  as- 
signees of  the  Duke  of  York,  I  am  of  opinion,  the  right 
of  appointing  rangers  in  them,  belongs  to  the  owners 
of  those  woods,  and  not  to  Her  Majesty. 

EDW.  NORTHEY. 
October  19,  1705. 

(18.)  On  ike  escheat  of  negroes  in  Jamaica,  ly  the 
Solicitor-General  Montague. 

To   the  Right  Honorable  the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  Jr.,  in  his  letter  of  the  12th  of 
March,  I  have  considered  of  the  petition  of  Mr.  James 
Whitechurch,  and  the  several  papers  thereunto  annexed ; 
and  in  answer  to  the  quc&re  he  sends  me,  from  your 
Lordships :  Whether  the  limitation  of  five  years'  posses- 
sion, mentioned  in  the  Act  of  Assembly  for  confirming 
and  securing  titles  to  estates,  does  bind  the  Crown?  I  do 
humbly  certify  to  your  Lordships,  that  it  is  my  opinion, 
that  the  Crown's  title  is  not  bound  by  anything  in  the 
said  Act,  because  the  plea  of  five  years'  possession  is 


THE  KING'S  PREROGATIVE  ABROAD.         145 

only  to  bar  a  plaintiff  or  demandant  that  is  not  a  mi- 
nor, or  under  coverture,  both  which  disabilities,  or 
rather  protections,  are  in  no  wise  applicable  to  the  per- 
son that  wears  the  Crown,  which  shows  the  design  of 
the  said  Act  to  be  only  to  bar  such  demandants  and 
plaintiffs  as  are  sometimes  liable  to  those  incapacities. 

But,  notwithstanding  the  petitioner  cannot  make  title 
against  the  Crown,  by  force  of  that  Act  of  Assembly , 
yet  I  do  humbly  conceive  the  inquisition,  which  finds 
the  Queen's  title,  is  not  valid  in  law,  and  consequently, 
Mr.  Whitechurch's  right  to  the  negroes  mentioned  in 
said  writ,  is  not  thereby  set  aside ;  for  the  inquisition 
does  not  find  the   negroes  mentioned  in  the  writ,  to  be 
the  same  as  Charles  Delamain  died  seised  of,  but  only 
says,  that  the  jurors  do  believe  them  to  be  the  same ; 
and,  therefore,  since  it  is  asserted  that  the  negro  woman 
from  whom  the  rest  have  issued,  was,  many  years  ago, 
sold  to  the  wife  of  the  petitioner,  by  the  administrator 
of  Wroth  Delamain,  whose  property   she    was   at   the 
time  of  his  decease,  for  a  debt  owing  bona  fate,  from  the 
said  Wroth  Delamain,  and  that  the  said  Charles  Dela- 
main was  never  seised  of  her,  or  any  of  her  offspring, 
which,  if  true,  will  take  away  all  pretence  to  an  escheat, 
and,  after  so  long  and  uninterrupted  enjoyment,  every 
thing  ought  to  be  presumed,  that  can  be  thought  of,  in 
favor  of  the  possessor ;  and  since  this  inquisition  was 
set  on  foot  in  the  absence  of  the  petitioner,  even  when 
he  was  out  of  the  Isle,  after  all  his  papers  had  been  de- 
stroyed by  the  fire  at  Port  Royal,  my  humble  opinion  is, 
that  it  will  be  more  for  Her  Majesty's  service,  to  direct 
a  grant  to  be  made  ad  corroborandum  titulum  of  the 
petitioner,   than  to  give  any  countenance  to  the  grant 
which  Brigadier  Handisyd  has  made,  of  the  eleven  ne- 
20 


146  OPINIONS  OF  EMINENT  LAWYERS. 

groes  to  the  Provost  Marshal,  and  Secretary,  Mr.  Rigby. 

JAMES  MONTAGUE. 
April  2,  1708. 

• 

(19.)  On  the  escheat  of  ambergris,  in  Jamaica^  by  the 
same  laivyer. 

To  the  Right  Honorable   the  Lords   Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  compliance  to  your  Lordships'  desires,  signified  to 
me  by  Mr.  Popple's  letter  of  the  12th  of  this  instant, 
November,  I  have  perused  the  extract  of  Brigadier  Han- 
disyd's  letter,  sent  me  enclosed  in  Mr.  Popple's  letter,  re- 
lating to  some  ambergris  seized  in  Jamaica,  and  the  prose- 
cution thereupon,  and  am  humbly  of  opinion,  that  the 
Governor  and  Queen's  Council  there,  have  done  all  that  by 
law  can  be  done,  for  recovery  of  this  ambergris  for  the 
Queen  ;  for  a  jury  have  it  in  their  power,  whether  they 
will  give  a  general  verdict,  or  a  special  verdict,  and  the 
most  that  the  Queen's  counsel  can  do,  is  to  desire  them 
not  to  take  upon  them  the  determination  of  matters, 
which,  in  point  of  law,  are  disputable,  but  find  the  facts 
specially,  and  submit  the  points  of  law  to  the  judgment 
of  the  Court ;  and  this,  I  understand,  was  done  by  the 
Queen's  Attorney-General  and  Mr.  Brodrick  ;  but  the  ju- 
ry refused  to  give  a  special  verdict,  and  found  generally 
for  the  defendant,  against  the  Queen.  This  refractoriness 
in  the  jury  is  often  times  seen  in  our  Courts  here,  in 
England  ;  and  when  it  does  happen,  the  Queen's  counsel 
are  forced  to  submit,  unless  they  can  hope  to  get  a  more 
favorable  jury  returned,  and  then  indeed  they  move  for 
a  new  trial ;  but  in  this  grand  Court  of  Jamaica,  I  under- 
stand it  usually  goes  against  the  Crown,  where  there  is 


THE  KING'S    PREROGATIVE  ABROAD.  147 

the  least  shadow  for  so  doing"  and,  therefore, I  much 
question  whether  granting  a  new  trial  will  be  of  any 
avail ;  in  all  likelihood,  it  will  only  run  the  Queen  into 
greater  charges  and  expenses;  for  which  reasons  I  cannot 
advise  anything  further  to  be  done,  than  what  has  been 
already  directed  and  attempted. 

JAMES  MONTAGUE. 
Nov.  23,  1709. 

(20.)  On  the  escheat  of  lands  and  negroes  in  Jamaica, 
by  the  Attorney-General  Northey. 
To  the  Right  Honorable   the  Lords   Commissioners   of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  enclosed 
account  of  escheats,  which  your  Lordships  received  from 
the  Lord  Archibald  Hamilton,  with  his  observations 
thereon,  and  I  do  most  humbly  certify  your  Lordships, 
that,  by  an  act  passed  21st  November,  1703,  entitled  an 
act  for  raising  a  revenue  to  Her  Majesty,  &c.,  it  is  provi- 
ded, that  as  well  her  Majesty's  quit-rents,  fines,  forfeit- 
ures, and  escheats,  arising  within  the  Island  of  Jamaica, 
as  the  impost  and  revenue  thereby  granted,  shall  be  ap- 
plied and  appropriated  to  the  support  of  the  government 
of  that  Island,  and  the  contingent  charges  thereof,  and 
to  no  other  use,  intent  or  purpose,  whatsoever ;  but  not 
to  lessen  Her  Majesty's  power  of  pardoning  and  remit- 
ting such  fines  and  forfeitures,  and(  £1250  thereof  paid,) 
and  is  appropriated  to  the  fortifications. 

As  to  the  new  instruction  of  the  19th  of  February, 
1708-9,  to  the  Governor,  restraining  him  from  selling 
escheats,  till  an  account  thereof  shall  be  transmitted  to 


148  OPINIONS  OF  EMINENT  LAWYERS. 

Britain,  and  directions  received  from  thence,  I  cannot 
say  anything  concerning  that  complaint  which  occasion- 
ed it,  or  how  that  complaint  was   supported,  having  no 
account  of  it,  except  what  appears  in  the  order,  by  which 
it  appears  to  have  arisen  from  persons,  whose  titles  had 
been  questioned  on  such  writs  of  escheats,  and  avoided  ; 
their  complaints  being,  as  stated  in  that  order,  that  their 
titles  to  their  lands  and  negroes  had  been  so  questioned , 
notwithstanding  they  had  held  and  enjoyed  the  same 
many  years,  which,  if  without  title,    as  by  the  deter- 
minations on  those  writs  it  appears  to  have  been,  it  was 
not  a  disturbance  or  oppression,  but  a  just  prosecution 
for  the  rights  of  the  Crown.      Another  grievance  was, 
that  when  the  title  of  the  Crown  had  been  established, 
the  escheated  estates  had  been  granted  to  the  prosecu- 
tors and  informers,  which  I  think  also  not  an  objection  ; 
for  they,  that  had  discovered  the  title  of  the  Crown,  had 
reason  to  have  a   preference  in  purchasing   the   same, 
which  could  not,  by  the  act  mentioned  in  the  statute,  be 
for  less  than  they  were  valued  at  by  the  jury  finding  the 
escheat ;    and,  in  regard,  the  profits  of  those  escheats 
are,  by  that  Act  (approved  by  Her  Majesty,)  appropria- 
ted for  supporting  the  government  of  that  Island,  which 
by  the  representation,  is  stated  not  to  be  sufficient  for 
that  purpose.     I  do  not  see  any  objection  against  alter- 
ing that  instruction,  and  permitting  the  Governor  to  sell 
from  time  to  time,  as  he  is  allowed  to  do  by  that  Act, 
which  hath  been  confirmed  ;  he  being  satisfied  that  the 
value  found  is   a  reasonable  value,  remitting   accounts 
thereof,  from  time  to  time,  to  Her  Majesty. 

EDW.  NORTHEY, 
August  6,  1713, 


THE  KING'S   PREROGATIVE  ABROAD.  149 

(21.)  On  the  Queeris  right  of  quit-rents,  in  New  York, 
by  the  same  lawyer. 

To  the  first  quaere,  I  am  of  opinion,  the  second  pa- 
tent, confirming  the  grant,  and  reserving  a  quit-rent,  is 
to  be  taken,  the  quit-rent  by  the  first  grant ;  and.  there- 
fore, that  must  be  accounted  for  from  the  first  grant, 
the  land  being  charged  with  it. 

To  the  second  quaere,  I  am  of  opinion,  this  will  be  the 
same  as  the  other,  and  will  ascertain  the  quit-rent,  but 
not  discharge  the  arrears  ;  and  the  words,  in  lieu  of  all 
other  quit-rents,  &c.,  import  no  more  than  that  the  lands 
are  to  be  holden  under  that  rent,  and  under  no  other 
rent,  service,  &c.;  and,  therefore,  no  other  duties,  &c.,  but 
that  quit-rent,  and  the  arrears  thereof,  can  be  demanded 
for  those  lands. 

To  the  third  queer  e,  I  am  of  opinion,  the  writ  of  ces- 
savit  is  only  where  a  tenure  is  created  by  the  grant  in 
fee-farm,  which  could  not  be  by  the  grants  before  King 
James  the  Second  came  to  the  Crown,  he  being  a  sub- 
ject ;  but  where  there  is  a  tenure,  as  by  the  Crown, )the 
Crown  not  being  within  the  statute  of  quiet  emptores  ter-* 
rarum,)  the  writ  of  cessavit  lies.  However,  the  statutes 
of  Westminster  2,  and  Gloucester,  which  gave  the  writs 
of  cessavit,  not  having  been  put  in  practice  on  the  set- 
tling that  colony,  nor  enacted  there  since,  I  am  of  opin- 
ion, those  laws  are  not  the  laws  of  that  colony, 

EDW.  NORTHEY. 

July  30,  1713. 


150  OPINIONS  OF  EMINENT  LAWYERS. 

(22.)  Mr.Fands  opinion  on  the  King1  s  riglit  to  treas- 
ure-trove, in  the  Bahamas. 
To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  the  two  cases 
mentioned  in  the  letter  of  Governor  Fitzwilliams,  dated 
the  12th  day  of  November  last ;  one  relating  to  the  right 
of  administration  to  John  Sims,  a  mulatto,  who  died  in- 
testate, leaving  a  wife,  without  any  relations  ;  the  other 
relating  to  some  treasure  found  at  Providence,  by  one  of 
the  inhabitants  :  and  I  beg  leave  to  say,  as  to  the  first 
case,  that  John  Sims,  dying  intestate,  without  any  rela- 
tions, the  moiety  of  such  estate,  which  it  is  stated  he  died 
in  the  possession  of,  becomes  the  right  of  the  Crown ;  the 
other  moiety,  his  wife  will  be  entitled  to,  as  he  left  no 
children. 

As  to  the  other  case,  if  no  person  can  legally  prove  a 
property  in  the  treasure  found,  it  will  be  deemed  the 
property  of  the  Crown. 

FRAN.  FANE. 

Feb.  27,  1736-7. 

(23.)  The  Attorney-General  Northers  opinion  of  the 
Queen's  right  to  royal  fisli,  at  New  York,. 

The  pleading  is  informal  on  both  sides,  for,  first  the 
plea  of  the  defendant,  alleging  a  prescription  in  the  in- 
habitants of  the  town  of  Southton,  to  take  whales  on  the 
high  seas  and  coasts  of  the  same,  and  convert  them  to 
their  own  use,  is  ill ;  for  although  royal  fishes  may  be 
claimed  by  prescription,  yet  a  prescription  cannot  be  laid 


THE  KING'S  PREROGATIVE  ABROAD.         151 

in  the  inhabitants,  and  New  York  being  gained  to  the 
Crown  of  England  within  time  .  of  memory,  no  prescrip- 
tion can  be  there  against  the  Crown ;  next  the  travers- 
ing the  day  and  year  laid  in  the  information,  and  the 
whales  coming  to  his  hands  by  finding  and  his  conver- 
sion, is  ill.  The  prosecutor's  replication  is  also  a  mis- 
take, that  royal  fish  cannot  be  claimed  but  by  grant,  and 
the  traverse  of  the  prescription,  which  should  have  been 
demurred  to,  because  not  well  alleged. 

The  rejoinder,  denying  the  Queen  cannot  be  divested 
but  by  grant,  being  taken  by  protestation  is  well  enough, 
that  being  matter  of  law,  and  not  fact ;  and  joining  issue 
on  the  traverse  of  the  prescription,  was  well,  and  no  occa- 
sion for  the  prosecutor's  demurrer  ;  however,  the  plea 
of  the  defendant  being  ill,  I  am  of  opinion,  judgment 

ought  to  be  given  for  the  Queen. 

EDW.  NORTHEY. 

July  30,  1713. 

s 

(24.)  The  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Ryder  and  Murray,  on  ike  Kings  right  to  the  terri- 
tory of  Avalon,  in  Newfoundland,  which  had  been  grant- 
ed to  Sir  George  Calvert,  in  1623. 

To  the  Right  Honorable,  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

Pursuant  to  your  Lordships'  desire,  signified  to  us  by 
Mr.  Pownall,  your  Lordship's  Secretary,  in  his  letter  of 
the  20th  of  November  last,  enclosing  the  copy  of  a  peti- 
tion presented  to  His  Majesty  by  Lord  Baltimore,  and 
referred  to  your  Lordships  by  order  of  the  Lords  of  the 
Committee  of  Council  for  Plantation  affairs,  and  informing 
us  that,  as  it  appeared  to  your  Lordships  a  matter  of 


152  OPINIONS  OF  EMINENT  LAWYERS. 

great  importance,  you  desired  our  opinion  upon  it ;  and 
Mr.  Pownall,  at  the  same  time,  was  pleased  to  send  us 
two  books  of  your  Lordships'  office,  the  one  containing  a 
representation  made  by  the  Board  of  Trade  to  His  Majes- 
ty, in  1718,  relative  to  the  state  of  Newfoundland  ;  the 
other  containing  a  variety  of  authentic  papers,  some  of 
which  are  referred  to  in  the  said  petition,  and  which 
appeared  to  be  necessary  for  our  information  upon  this 
occasion,  which  books  and  papers  are  here  with  returned. 
We  have  taken  the  said  petition,  books  and  papers,  in- 
to our  consideration,  and  we  have  been  attended  by 
Lord  Baltimore,  and  his  agents,  and  heard  what  they  had 
to  offer  in  support  of  the  said  petition ;  as,  notwithstand- 
ing the  determination,  in  1660,  in  favor  of  the  grant  in 
1623,  there  is  no  evidence  of  any  actual  possession  of 
the  province  claimed,  or  exercise  of  any  powers  of  gov- 
ernment there,  by  the  Baltimore  family  ;  on  the  contra- 
ry, it  is  most  probable  that,  at  least  from  the  year  1638, 
they  have  been  out  of  possession.  And  as  from  the  year 
1669,  there  have  been  many  proceedings,  which  appear 
from  the  said  books  and  papers,  and  even  an  Act  of  Par- 
liament, passed  in  the  reign  of  King  William  the  Third, 
inconsistent  with  the  right  now  set  up,  without  taking 
the  least  notice  thereof,  and  without  any  claim  or  inter- 
position on  the  part  of  the  Baltimore  family ;  and  as  the 
King's  approbation  of  a  governor  ought  to  be  in  conse- 
quence of  a  clear  title  of  proprietorship,  we  are  humbly 
of  opinion,  that  it  is  not  advisable  for  His  Majesty  to 

comply  with  the  said  petition. 

D.  RYDER. 

April  5,  1754.  W.  MURRAY. 


THE  KING'S  PREROGATIVE  ABROAD.         153 

(25.)  The  opinion  of  the  Attorney-General  Har court, 
on  the  Qiweris  right  of  escheat,  to  an  estate  in  Jamaica. 
My  Lord ; 

In  obedience  to  your  Lordship's  commands,  I  have  pe- 
rused an  Act,  passed  in  Jamaica,  to  enable  Gary  Bodle 
and  others,  to  sell  lands  &c.,  and  am  humbly  of  opinion, 
that  Act  is  not  fit  to  be  confirmed. 

The  Act  recites  that  King  Charles  the  Second  granted 
two  parcels  of  land,  containing  one  thousand  one  hun- 
dred acres,  and  four  hundred  acres  to  Dorothy  Bannister, 
and  her  heirs  forever ;  and  that  Dorothy  Bannister  con- 
veyed the  same  to  Dorothy  Wait  and  her  heirs  forever ; 
and  that  Dorothy  Wait  afterwards  married  with  Theo- 
dore Gary,  Esq. 

The  Act  likewise  recites,  that  King  Charles  the  Sec- 
ond granted  five  hundred  acres  of  land  to  Theodore  Gary 
and  his  heirs,  and  that  Theodore  Gary  died  without  heirs  ; 
and  that  King  James  the  Second,  by  his  letters  patent 
of  escheat,  dated  the  14th  day  of  January,  in  the  fourth 
year  of  his  reign,  granted  to  Dorothy  Gary,  and  John 
Bodle,  and  their  heirs,  the  said  five  hundred  acres. 

The  Act  likewise  recites,  that  John  Bodle  intermarried 
with  Elizabeth,  the  grand-daughter  of  the  said  Dorothy 
Gary,  and  had  issue  by  her  (Gary)  John  and  Thomas, 
and  that  Dorothy  Gary,  by  her  will,  gave  to  John  and 
Thomas  six  hundred  pounds  each,  at  their  ages  of  one- 
and-twenty,  and  all  the  rest  of  her  estate,  lands,  tene- 
ments &c.,  to  the  said  Gary  Bodle,  for  his  life,  and  to 
the  heirs  of  his  body,  lawfully  to  be  begotten,  with  such 
remainders  over,  in  default  of  issue  of  Gary,  as  in  the 
will  are  mentioned.  The  Act  likewise  recites,  that 
John  Bodle,  the  father  of  the  said  Theodore,  had  con- 
21 


154  OPINIONS  OP  EMINENT  LAWYERS. 

tracted  great  debts  in  endeavoring  to  improve  the 
estate  ;  and  that  Gary  Bodle,  by  reason  of  the  entail  in 
Dorothy's  will,  could  not  sell,  without  an  act  of  the  As- 
sembly for  that  purpose ;  and,  thereupon,  trustees  are 
appointed  to  sell  one  thousand  one  hundred,  four  hun- 
dred, and  five  hundred  acres,  and  the  purchasers  are,  by 
the  Act,  secured  in  the  enjoyment  thereof.  This  Act  I 
take  to  be  liable  to  the  following  objections  : 

1st,  The  five  hundred  acres  are  recited  to  have  been 
escheated  to  the  Crown,  on  the  death  of  Theodore  Gary 
without  heir,  and  the  grant  thereof,  by  King  James,  is 
mentioned  to  be  after  his  abdication,  viz :  on  the  14th 
day  of  January,  in  the  fourth  year  of  his  reign.  If  no 
sufficient  grant  has  been  made  since  the  escheat,  the  ti- 
tle remains  still  in  Her  Majesty. 

2d,  Supposing  Dorothy  Gary  to  have  a  good  title, 
and  the  three  several  parcels  well  devised  by  her  will, 
yet  I  see  no  necessity  for  an  Act  of  Assembly  to  enable 
Gary  Bodle  to  sell ;  for  though  the  first  words  in  her 
will  devised  the  estate  to  him  during  his  life  only,  yet 
the  immediate  following  words  (  and  to  the  heirs  of  his 
body  lawfully  to  be  begotten,)  enlarge  his  estate,  and 
make  him  tenant  entail,  and,  consequently,  he  has  power 
to  sell  without  the  aid  of  an  Act. 

3d,  I  conceive  the  want  of  a  saving  clause  in  this  Act, 
to  be  a  further  objection  against  Her  Majesty's  approv- 
ing the  same. 

SIM.  HARCOURT. 
July  12,  1707. 


THE  KING'S  PREROGATIVE  ABROAD.         155 

(26.)  The  opinion  of  Mr.  Jackson  on  the  King's  right 
to  the  white  pine  frees  growing  on  the  Kennebeck  River. 

To  the   Right   Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  humble  obedience  to  your  Lordships'  commands, 
signified  to  me  by  Mr.  Pownall's  letter  of  the  16th  in- 
stant, I  have  taken  into  consideration  the  paragraph 
extracted  from  a  letter  of  the  Surveyor-General  of  His 
Majesty's  woods,  in  America,  inserted  therein,  together 
with  the  two  law  reports  accompanying  the  same. 

The  paragraph  states  a  claim  made  by  the  proprietors 
of  an  extensive  tract  of  land  upon  both  sides  of  Kenne- 
beck  River,  on  which  there  is  an  abundant  growth  of 
the  best  pine  timber,  and  which  tract  the  proprietors 
allege  to  bje  private  property ;  not,  as  I  conceive,  be- 
cause it  is  parcel  of  the  province  of  Maine, (within  which 
only  part  of  it  lies,)  but  because  it  is  not  the  property  of 
the  Province  of  the  Massachusetts  Bay,  nor  indeed  of 
any  other  corporate  body,  but  is  the  property  of  a  set  of 
private  parties. 

I  have,  likewise,  considered  the  question  stated  in  Mr. 
Pownall's  letter,  namely,  whether,  by  the  provisions  of 
the  statute  of  the  second  of  George  the  Second,  Cap.  35. 
white  pine-trees,  of  the  diameter  of  twenty-four  inches 
or  upwards  at  twelve  inches  from  the  ground,  growing 
upon  any  tract  of  land  possessed  under  a  grant  of  the 
Council  of  Plymouth,  may  or  may  not  be  felled,  with- 
out a  licence  from  the  Crown  :  and  am  humbly  of  opinion, 
that  in  case  the  soil  or  tract  on  which  such  white  pine 
trees  grow  was  private  property  before  the  7th  of  Octo- 
ber, 1690,  they  may  be  cut  without  a  licence  from  the 


156  OPINIONS  OF  EMINENT  LAWYERS. 

Crown,  notwithstanding  any  provision  of  the  statute  of 
the  2d  of  George  the  Second. 

That  Act  appears  to  me  to  have  been  intended  to  ob- 
viate the  doubt  that  gave  occasion  to  the  question  stated 
in  1726,  to  the  then  Attorney  and  Solicitor-General  for 
their  joint  opinion,  whose  answer  is  contained  in  one  of 
the  reports  transmitted  to  me  :  that  doubt  arose  upon  the 
8th  Geo.  I.,  which  was  alleged  to  amount  to  a  release  of 
the  Crown's  right  to  part  of  the  reservation  contained  in 
the  Charter  of  the  Massachusetts  Bay.  This  doubt  is 
now  totally  removed,  and  the  single  question  that  can 
occur  on  the  2d  Geo.  II.,  is,  whether  the  soil  in  question 
was  actually  private  property,  before  the  7th  of  October, 
1690 ;  not  whether  it  is  within,  or  not  within  a  town- 
ship. 

The  claim  of  the  Kennebeck  company  (the  proprietors 
mentioned  in  the  Surveyor-General's  letter)  is  founded 
on  a  grant  from  the  Council  of  Plymouth,  long  antece- 
dent to  the  7th  October,  1690,  and  I  am,  therefore,  of 
opinion,  that  in  case  their  title  be  well  derived,  (of 
which  I  do  not  pretend  to  judge,)  they  are  exempt  from 
the  penalties  of  the  2d  Geo.  II,  I  should  have  been  in- 
clined to  think  so,  had  that  company  been  a  corporation, 
but  this  is  not  now  the  question,  as  they  are  a  mere 
partnership. 

But  I  think  it  my  duty  to  remark  to  your  Lordships, 
that  although  white  pine-trees,  growing  upon  the  soil 
possessed  by  private  persons,  under  a  grant  of  the  Coun- 
cil of  Plymouth,  are  not  the  objects  of  preservation  un- 
der the  2d  of  Geo.  II ;  yet,  in  case  they  do  not  grow 
within  the  limits  of  some  township,  they  seem  to  come 
within  the  provisions  of  the  8th  of  Geo.  L,  Cap.  12, 

May  23,  1771.  RICH.  JACKSON. 


THE  KING'S  PREROGATIVE  ABROAD.         157 

(27.)  The  opinion  of  thesatne  counsel  on  the  construc- 
tion of  the  8  Geo.  I.,  for  the  preservation  of  the  white 
pine  trees  in  New  England. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  which  I 
had  the  honor  to  receive  from  Mr.  Pownall  the  30th  of 
last  month,  I  have  considered  the  clause  of  the  Act  of 
the  8th  of  Geo.  I.,  Cap.  12,  intended  for  the  preservation 
of  white  pine  trees,  in  several  Provinces  therein  named, 
in  America,  and  am  of  opinion,  that  white  pine  trees, 
growing  on  any  lands  in  the  Province  of  Massachusetts 
Bay,  not  erected  into  a  township,  cannot,  under  the  pro- 
visions and  reservations  of  that  statute,  be,  in  any  case, 
cut,  felled  or  destroyed,  without  a  licence  from  the 
Crown. 

I  beg  leave  to  add,  that  I  conceive  the  statute  of  2d 
Geo.  II.,  Cap.,  35,  has  not  removed  the  restrictions  im- 
posed by  the  former  Act,  but  has,  on  the  contrary,  still 
narrowed  the  right  of  felling,  to  such  white  pine  trees 
only,  as  grow  on  private  property  :  and  (by  an  explana- 
tion of  the  Province  Charter)  in  the  case  of  trees  of  a 
certain  description,  to  such  as  grow  on  land  that  was 
private  property,  before  the  7th  of  October,  1690,  I  take 
it,  that  as  the  law  now  stands  : 

1,  No  man  can  cut  white  pine  trees  in  any  part  of 
America,  without  a  license,  unless  they  grow  on  private 
property. 

2,  Not  in  Nova  Scotia,  New  England,  New   Jersey, 
or  New  York,  unless  they  grow  within  a  township. 

3,  That  in  the  Province  of  Massachusetts  Bay,  no  man 


158  OPINIONS  OF  EMINENT  LAWYERS. 

can  legally  cut  white  pine  trees,  twenty-four  inches  di- 
ameter twelve  inches  from  the  ground,  unless  they  both 
grow  within  a  Township,  and  on  land  that  was  actually 
private  property,  prior  to  the  7th  of  October,  1690. 

How  far  it  may  be  expedient  to  continue,  or  remove 
the  restriction,  as  to  property  without  the  bounds  of  a 
Township,  or  in  any  other  respect,  is  for  the  considera- 
tion of  your  Lordships  and  the  Legislature.  It  is  cer- 
tainly obvious,  that  though  the  law  gives  a  protection  to 
such  trees  growing  on  private  property,  which  they 
would  not  otherwise  have  had,  it  deprives  them,  at  the 
same  time,  of  another  protection  (the  vigilance  and  care 
of  the  owner)  that  might,  perhaps,  have  been  more  effi- 
cacious, as  experience  has  shown  it  to  be  in  most  other 
cases, 

RICH,  JACKSON. 

June  5,  1771. 

Second.     Of  the  King's  power  of  Taxation. 

(1.)  The  opinion  of  the  Attormy-Greneral  Northey, 
tliat  the  Queen  might  direct  to  be  levied  a  tax  on  the  con- 
quercdpart  of  St-  J£it£$  in  1704, 

In  obedience  to  your  Lordships'  commands,  signified  to 
me  the  4th  inst.,  by  Mr.  Popple,  I  have  considered  of  the 
annexed  presentment  of  the  Commissioners  of  Her  Maj- 
esty's Customs,  and  also  of  the  extract  of  Col.  Codrington's 
instructions,  and  am  of  opinion,  that  those  instructions 
are  not  material,  in  any  sort,  to  the  matter  contained  in 
the  presentment,  it  being  only  a  power  to  let  and  dispose 
of  lands.  As  to  the  presentment  of  the  Commissioners 
of  the  Customs,  I  am  of  opinion,  that  the  officers  of  the 
English  part  of  St.  Christopher's  had  no  authority,  by 


THE    KING'S    PREROGATIVE    ABROAD.  159 

virtue  of  the  Plantation  Act,  made  there  for  the  four 
and  a  half  per  cent,  on  goods,  to  levy  the  same  for 
goods  exported  from  that  part  of  St.  Christopher's  lately 
gained  by  conquest  from  the  French,  that  law  extend- 
ing only  to  such  part  of  St,  Chistopher's  as  belonged  to 
the  Crown  of  England,  when  that '  law  was  made  ;  but 
Her  Majesty  may,  if  she  shall  be  so  pleased,  under  her 
great  Seal  of  England,  direct  and  command  that  the  like 
duty  be  levied  for  goods  to  be  exported  from  the  con- 
quered part ;  and  that  command  will  be  a  law  there,  Her 
Majesty,  by  her  prerogative,  being  enabled  to  make 
laws,  that  will  bind  places  obtained  by  conquest,  and 
all  that  shall  inhabit  therein. 

EDW.  NORTHEY. 
Jan.  13,  1703-4. 

(2.)  The  same  lawyer's  opinion,  that  the  Queen  might 
legally  take  off  the  duty  of  five  shillings  per  ton,  on 
French  ships,  when  the  English  ships  should  le  ex- 
empted from  paying  the  duty  of  fifty  sols  per  ton,  in 
France. 
To  the  Queen's  most  excellent  Majesty. 

May  it  please  your  most  excellent  Majesty ; 

My  Lord  Viscount  Bolingbroke  having  signified  your 
Majesty's  commands  to  me,  to  consider  of  the  business 
of  the  duty  of  five  shillings  per  ton,  laid  upon  French 
ships  here  in  England,  and  the  imposition  of  fifty  sols  per 
ton,  on  English  shipping  in  France,  and  to  report  to 
your  Majesty  my  opinion,  whether  the  said  duty  of  five 
shillings  per  ton,  being  unappropriated  money,  your  Maj- 
esty is  not  at  liberty,  by  law,  to  take  it  off,  at  the  same 
time  that  the  French  take  off  fifty  sols  per  ton,  on' 
English  shipping,  if  your  Majesty  shall  think  fit ;  or 


160  OPINIONS    OP    EMINENT    LAWYERS. 

whether  the  words  of  the  Act  must  be  literally  observed, 
and  the  duty  of  five  shillings  per  ton,  on  French  shipping, 
cannot  be  taken  off  till  three  months  after  the  taking  off 
fifty  sols  per  ton  in  France.  And  I  am  humbly  of  opin- 
ion, that  the  duty  of  five  shillings  per  ton,  being  unappro- 
priated, and  the  French  having  effectually  taken  off  the 
fifty  sols  per  ton,  on  English  shipping,  your  Majesty  may 
lawfully  direct  the  Commissioners  of  the  Customs,  to  for- 
bear taking  the  said  five  shillings  per  ton,  on  French 
shipping  for  three  months,  and  then,  by  the  Act  of  navi- 
gation, laying  that  duty,  the  same  will  determine. 

EDW.  NORTHEY. 
Sept  30, 1713. 

(3.)  See  tlie  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, YorJce  and  Weary,  on  tlie  King's  power  of  Taxa- 
tion over  conquered  countries.* 

Third.     Of  the  King's  Grants. 

(1.)  The  opinion  of  the  Attorney-General  Treby,  in 
1689,  on  a  grant,  for  life,  of  Auditor  of  tlie  Virginia 
revenue. 

[A  letter  to  the  Attorney-General,  with  Mr.  Ayleway's 

patent.] 

Council  Chamber,  June  21, 1689. 

Sir, — The  Right  Honorable  the  Lords  of  the  Com- 
mittee for  Trade  and  Plantations,  having  considered  the 
petition  of  Mr.  Robert  Ayleway,  referred  to  their  Lord- 
ships by  His  Majesty's  order  of  the  3d  of  May  last,  pray- 
ing to  be  admitted  to  the  office  of  Auditor-General  of 
Virginia,  pursuant  to  letters  patent  in  that  behalf,  their 
Lordships  have  ordered  a  copy  of  the  said  letters  patent 

"Third  head,  II.  No.  7 


THE  KING'S  PREROGATIVE  ABROAD. 

• 

to  be  sent  to  you  for  your  opinion,  Whether  the  peti- 
tioner be  legally  stated  in  the  said  office,  and  whether 
he  be  not  obliged  to  give  his  personal  attendance  in  the 
execution  thereof,  in  Virginia,  at  least  if  His  Majesty 

nhall  require  it. 

WM.  BLATHWAYT. 

The  petitioner,  Mr.  Ayleway,  brings  you  the  original 
patent  with  this. 

June  25,  1689. 

1  have  perused  the  letters  patent  of  January  16,  in 
the  twentieth  year  of  the  reign  of  King  Charles  the 
Second,  whereby  the  said  King  grants  to  Hobert  Ayleway 
the  office  and  place  of  Auditor-General  of  Virginia,  for  his 
life  ;  and  I  conceive  the  same  to  be  a  good  grant  in  law ; 
and  that  he  may  execute  the  place  by  deputy,  without 
personal  attendance,  provided  his  deputy  be  sufficient. 

GEO.  TREBY. 

(2.)  Mr.  Lamtis  opinion  on  the  appointment  of  Sheriffs 
in  New  Jersey. 
To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  signified 
td  me  by  Mr.  Hill's  letter  of  the  18th  of  July  last,  I 
have  reconsidered  an" Act  passed  in  New  Jersey,  in  Janu- 
ary, 1747,  entitled :  "An  Act  to  oblige  the  several  sher- 
iffs in  this  Colony  of  New  Jersey,  to  give  security,  and 
take  the  oaths  or  affirmation  therein  directed,  for  the  due 
discharge  of  their  offices,  and  to  prevent  their  too  long 
continuance  therein." 

I  find  in  my  report  made  to  your  Lordships  the  23d 
22 


162  OPINIONS  OP  EMINENT  LAWYERS. 

of  January  last,  that  I  made  no  objection  to  this  Act  in 
point  of  law,  as  it  appeared  to  me  that  Acts  of  the  like 
nature,  in  regard  to  sheriffs,  have  passed  in  some  of  the 
neighboring  Provinces,  which  have  been  confirmed  here, 
and  it  is  upon  the  plan  of  those  Acts,  that  this  Act 
seems  to  have  been  framed. 

As  for  the  reasons  of  this  Act  being  passed  within 
this  Province,  the  Governor,  who  gave  his  assent  there- 
to, I  suppose  has  informed  your  Lordships,  pursuant  to 
his  instructions,  and  it  seems  very  proper  he  should 
have  done  so,  as,  by  this  Act,  the  limiting  the  time  of 
the  continuance  of  a  sheriff  in  his  office,  is,  in  some  re- 
spect, restraining  the  power  he  derives  from  the  Crown 
of  appointing  sheriffs,  which,  before  this  Act  passed, 
was  without  limitation,  and  so  was  the  power  of  the 
Crown  in  England,  formerly  ;  but  by  several  Acts  that 
have  been  passed  here,  the  Legislature  have  limited  the 
time  of  a  sheriff  serving  in  his  office  :  Therefore,  it  ap- 
pears to  me,  that  as  some  of  the  neighboring  Provinces 
have  found  reason  to  pass  Acts  of  this  nature,  which 
are  now  subsisting,  and  as  the  Legislature  here  have  also 
found  reason  heretofore  to  pass  Acts  limiting  the  time  of 
a  sheriff 's  continuance  in  his  office,  that  there  may  have 
been  reasons  to  induce  the  Legislature  of  this  Province 
to  do  the  same ;  all  which  must  be  submitted  to  your 
Lordships,  and  from  the  information  you  have  received, 
how  far  you  think  proper  to  recommend  the  confirming 

of  this  Act. 

MAT.  LAMB. 

LINCOLN'S  INN,  Sept.  30,  1749. 


THE  KING'S  PREROGATIVE  ABROAD.         163 

(3.)  Mr.  Fane's  opinion  on  the  King's  power  to  con- 
firm the  titles  to  land  in  Connecticut 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  transmitting  to  me  copies 
of  the  Charter  of  Connecticut,  and  the  petition  of  the 
agents  of  that  Colony  •  and  also,  the  memorial  of  Mr. 
Winthorp  ;  and  desiring  my  opinion,  whether  His  Ma- 
jesty can,  by  virtue  of  his  prerogative,  and  without  the 
assistance  of  Parliament,  gratify  the  said  Colony  in  their 
request  1  I  have  considered  of  the  same,  and  beg  leave 
to  observe  to  your  Lordships,  that  I  cannot  pretend  to 
say  whether  the  King,  by  virtue  of  his  prerogative,  can 
do  what  is  desired  by  the  petitioners.  But  I  must  submit 
it  to  your  Lordships'  consideration,  supposing  the  King 
had  a  power,  by  his  prerogative,  of  gratifying  the  re- 
quest of  this  Colony,  whether,  under  the  circumstances 
of  this  case,  it  would  not  be  more  for  His  Majesty's  ser- 
vice, to  take  the  assistance  of  Parliament,  as  that  meth- 
od will  be  the  least  liable  to  objection,  as  well  as  the  most 
certain  and  effectual  manner  of  gratifying  the  request 
of  the  petitioners. 

FRAN.  FANE. 

November  24,  1730. 


164  OPINIONS  OF  EMINENT  LAWYERS. 

(4.)  The  opinion  of  tlie  Attorney  and  Solicitor-Gene- 
ral, Ryder  and  Murray,  on  the  King's  right  to  make 
new  grants  of  land  in  New  Hampshire. 
[NEW   HAMPSHIRE. — State  of  the  case  with  respect  to 
certain  townships  and  tracts  of  land  granted  by  the 
governments    of  the   Massachusetts    Bay   and  Con- 
necticut, in  New  England,  which  townships  and  tracts 
of  land  are  now  part  of  the  Province  of  New  Hamp- 
shire, by  the  determinination  of  the  boundary  line 
between  that  Province  and  the  Province  of  the  Massa- 
chusetts Bay,  in  the  year  1738.] 

Disputes  having  for  a  long  time  subsisted  between 
the  Provinces  of  the  Massachusetts  Bay  and  New  Hamp- 
shire, with  respect  to  their  boundaries,  in  1733  a  peti- 
tion was  presented  on  behalf  of  the  Province  of  New 
Hampshire,  praying  that  Commissioners  might  be  ap- 
pointed to  ascertain  the  boundaries. 

Upon  hearings  of  both  parties  before,  the  Attorney 
a.nd  Solicitor-General,  the  Board  of  Trade  ancl  the  Coun- 
cil, His  Majesty  was  pleased,  by  his  order  in  Council  of 
the  9th  of  February,  1736,  to  direct  that  a,  commissiofl 
should  be  prepared  and  pass  under  the  Greai  Sea^  Au- 
thorizing Commissioners  to  mark  out  the,  dividing  line 
between  the  Provinces  of  the  Massachusetts^  Bay  anci 
New  Hampshire,  giving  liberty  to  either  party  therein, 
who  thought  themselves  aggrieved,  to  appeal  th.eref#om 
to  His  Majesty  in  Council.  In  pursuance  of  His  Ma- 
jesty's said  commission,  Commissioners  met  and  reported 
their  determination  specially,  upon  which  both  Pro- 
vinces appealed  to  His  Majesty  in  Council ;  and  after- 
wards their  Lordships  reported  to  His  Majesty,  as  their 
opinion,  that  the  northern  boundaries  of  the  Massachu- 


THE  KING'S  PREROGATIVE  ABROAD.  165 

setts  Bay  are  and  be,  a  similar  curve  line,  pursuing  the 
course  of  Merrimac  River,  at  three  miles  distance  from 
the  north  side  thereof,  beginning  at  the  Atlantic  Ocean, 
and  ending  at  a  point  due  north  of  a  place  in  the  plan  re- 
turned by  the  said  Commissioners,  called  Pantuket  Falls, 
and  a  straight  line  drawn  from  thence  due  west,  crossing 
the  said  river  till  it  meets  with  His  Majesty's  other  gov- 
ernments ;  and  that  the  rest  of  the  Commissioners'  said 
report  or  determination,  be  affirmed  by  His  Majesty.  In 
1738,  His  Majesty  was  pleased,  with  the  advice  of  his 
Privy  Council,  to  approve  of  their  Lordships'  report,  and 
to  confirm  it  accordingly;  in  consequence  whereof,,  the 
line  has  been  marked  out. 

In  the  years  1735  and  1736, ,  while  the  appeals  from 
both  the  Massachusetts  Bay  and  New  Hampshire  were 
depending  before  His  Majesty,  the  General  Assembly  of 
the  Massachusetts  Bay  granted  above  thirty  townships 
between  the  rivers  Merrimac  and  Connecticut,  which 
townships,  upon:  the  running  of  the  boundary  line  in 
1738,  fell  within  the  Province  of  New  Hampshire.  The 
condition^  of  these  grants  were,  that  the  grantees  should 
settle  the  said  townships  within  three  years  after  the 
date  of  their  respective  grants ;  but  this  condition!  ha_s 
been, performed  by  very  few,  if  by  any,,  of  the  granges; 
no  obligation  to  pay  quit-rents,  or  a;  reservation  o|  pine 
trees  fit  for  the  service  qrnd  supply  of  His  Majesty's 
navy,  are  inserted  in  any  of  these  .grants,  although  no 
grant  ought,  in  good  policy,  to  be  made  of  any  lands  in 
any  part  of  North  America,  without  both  these  provi- 
sions, which  have  been  thought  of  so  much  importance, 
and  so  absolutely  necessary  &*  t&e  public  service,,  that 
Mr.  Wentworth,  His  Majesty's  Governor  of  New  Bstmp- 


166  OPINIONS    OF  EMINENT    LAWYERS. 

to  pass  any  grant  of  lands,  without  enjoining  express 
conditions  of  cultivation,  the  reservation  of  quit-rents, 
and  the  preservation  of  such  pines,  as  are  of  size  for  the 
use  of  His  Majesty's  navy. 

There  are,  also,  about  sixty  thousand  acres  of  land 
situated  on  the  west  side  of  Connecticut  River,  which 
were  purchased  by  private  persons  from  the  government 
of  Connecticut,  to  whom  that  land  had  been  laid  out 
by  the  government  of  the  Massachusetts  Bay,  as  an 
equivalent  for  two  or  three  townships  which  the  Mas- 
sachusetts Bay  purchased  from  Connecticut  govern- 
ment. This  tract  of  land,  by  the  determination  of  the 
boundary  line  in  1738,  is  become  a  part  of  New  Hamp- 
shire, but  the  proprietors  of  it  are  subject  to  no  condi- 
tions of  improvement,  and  the  land  lies  waste  and  uncul- 
tivated. 

Question. — Whether  the  Crown  can  resume  the  lands 
granted  by  the  Province  of  the  Massachusetts  Bay,  un- 
der condition  of  cultivation,  those  lands  being  now  be- 
come a  part  of  New  Hampshire,  by  the  running  of  the 
boundary  line  in  1738,  in  cases  where  the  proprietors 
have  not  performed  the  condition  of  their  grants'?  and 
if  the  Crown  can,  what  is  the  most  advisable  and  regu- 
lar method  of  making  such  resumption  1  Whether,  in 
the  case  of  the  lands  granted  away  by  the  Province  of 
the  Massachusetts  Bay,  to  particular  persons,  without 
any  condition  of  cultivation,  the  Crown  can  now  enforce 
the  proprietors  of  such  lands  to  cultivate  them,  or  oblige 
them  to  take  these  lands  under  new  grants,  upon  the 
said  lands  being  made  a  part  of  the  Province  of  New 
Hampshire,  by  the  determination  of  the  boundary  line 
in  1738  ? 

We  are  clearly  of  opinion,  the  Crown  may  resume  the 


THE  KING'S  PREROGATIVE  ABROAD.         167 

lands  granted,  on  condition  of  settling  within  three  years, 
where  there  has,  in  fact,  been  no  settlement.  With  re- 
gard to  lands  granted  by  the  Massachusetts  Bay,  with- 
out any  such  express  condition,  where  there  has  been 
no  settlement,  as  they  appear  now  to  have  been  no  part 
of  that  Province,  their  grants  are  in  themselves  void,  as 
against  the  Crown,  and  there  appears  no  ground  to  sup- 
port them,  but  011  the  foot  of  the  direction,  which  we 
find  to  have  been  given  in  an  order  of  Council  of  the 
22d  of  January  1735,  when  the  commission  for  mark- 
ing the  dividing  line  between  the  two  Provinces  was 
first  directed,  viz  :  "  that  due  care  should  be  taken,  that 
private  property  might  not  be  affected  by  it."  We  do- 
not  find  that  this  direction  was  continued,  either  in  the 
order  of  the  9th  of  February,  1736,  on  which  the  present 
commission  issued,  or  in  the  commission  itself ;  or  that 
the  Commissioners  have,  in  their  report,  taken  notice  of 
any  such  private  rights  •  or  that  they  are  saved  in  the 
order  of  Council,  that  establishes  the  boundary  line. 
However,  considering  the  manifest  intent  of  these  sort 
of  grants,  whether  appearing  from  the  general  nature  or 
the  particular  recitals  or  considerations  of  them  ;  that 
the  country  may  be  settled  and  inhabited,  and  the  tacit 
condition  attendant  upon  them ;  that  the  lands  should 
be  settled  in  a  reasonable  time  ;  we  think  due  care  will 
be  taken  of  the  private  property  arising  from  these 
grants,  if  His  Majesty  shall  be  pleased  to  give  these 
sort  of  proprietors  a  reasonable  time  to  come  in,  and  ac- 
cept new  grants  upon  terms  of  settling  the  lands  with- 
in a  certain  time,  reserving  the  old  quit-rent,  and 
pines  fit  for  His  Majesty's  navy ;  and  in  case  of  their 
not  accepting  these  terms,  His  Majesty  may  resume  the 
lands. 


168  OPINIONS  OF  EMINENT  LAWYERS. 

The  proper  manner  of  making  such  resumption,  after 
such  default,  is,  by  making  new  grants  to  such  as  shall 
be  willing  to  accept  them,  at  such  rents,  and  on  such 
terms  as  shall  be  thought  most  advisable. 

D.  RYDER. 

August  14,  1752.  W.  MURRAY. 

(5.)  TTie  opinion  of  the  Attoi*ney-General,  Yorke, 
on  the  manner  of  discussing  objections  to  the  King's 

grants'. 

LINCOLN'S  INN,  Dec.  23,  1725. 

SIR  :  I  received  your  letter  to  Mr.  Solicitor-General 
and  myself,  reminding  us  of  the  reference  from  the 
Lords  Commissioners  of  Trade  and  Plantations,  upon  the 
papers  transmitted  by  Major  Drisdale,  Lieutenant  Gov- 
ernor of  Virginia.  We  have  long  ago  considered  those 
papers,  so  far  as  it  was  possible  for  us  to  do,  without  be-1- 
ing  attended  by  the  agents  of  parties  concerned  ;  but  * 
caveat  having  been  entered  in  my  office,  on  the  behalf 
of  Colonel  Spotswood,  who  claims  a  property  in  the 
matters  in  question,  against  any  report  being  made  with- 
out his  being  heard,  according  to  the  common  course  of 
proceeding,  no  report  could  be  made  till  he  had  an  op- 
portunity of  laying  his  objections  before  us.  The  method 
of  doing  this  is,  for  the  agent  of  the  Province  to  sum- 
mon the  party  entering  the  caveat  to  attend,  to  make 
out  his  objections  at  a  time  appointed,  and  then  both 
sides  may  be  heard ;  or  if  nobody  attends  on  the  behalf 
of  the  person  entering  the  caveat,  a  report  will  be  made 
ex  parte.  The  want  of  doing  this  has  occasioned  the 
delay,  for  the  agent  of  the  Province  has  never  applied 
for  a  report,  or  for  a  summons  to  call  Colonel  Spotswood  or 
his  agent  before  us.  I  do  not  mention  this  so  as  to  blame 


THE  KING'S  PREROGATIVE  ABROAD.  161 

to  be  sent  to  you  for  your  opinion,  Whether  the  peti- 
tioner be  legally  stated  in  the  said  office,  and  whether 
he  be  not  obliged  to  give  his  personal  attendance  in  the 
execution  thereof,  in  Virginia,  at  least  if  His  Majesty 

shall  require  it. 

WM.  BLATHWAYT. 

The  petitioner,  Mr.  Ayleway,  brings  you  the  original 
patent  with  this. 

June  25,  1689. 

I  have  perused  the  letters  patent  of  January  16,  in 
the  twentieth  year  of  the  reign  of  King  Charles  the 
Second,  whereby  the  said  King  grants  to  Robert  Ayleway 
the  office  and  place  of  Auditor-General  of  Virginia,  for  his 
life  ;  and  I  conceive  the  same  to  be  a  good  grant  in  law ; 
and  that  he  may  execute  the  place  by  deputy,  without 
personal  attendance,  provided  his  deputy  be  sufficient. 

GEO.  TREBY. 

(2.)  Mr.  Lamb's  opinion  on  the  appointment  of  Sheriffs 
in  New  Jersey. 
To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Hill's  letter  of  the  18th  of  July  last,  I 
have  reconsidered  an" Act  passed  in  New  Jersey,  in  Janu- 
ary, 1747,  entitled :  "An  Act  to  oblige  the  several  sher- 
iffs in  this  Colony  of  New  Jersey,  to  give  security,  and 
.  take  the  oaths  or  affirmation  therein  directed,  for  the  due 
discharge  of  their  offices,  and  to  prevent  their  too  long 
continuance  therein." 

I  find  in  my  report  made  to  your  Lordships  the  23d 
22 


162  OPINIONS  OF  EMINENT  LAWYERS. 

of  January  last,  that  I  made  no  objection  to  this  Act  in 
point  of  law,  as  it  appeared  to  me  that  Acts  of  the  like 
nature,  in  regard  to  sheriffs,  have  passed  in  some  of  the 
neighboring  Provinces,  which  have  been  confirmed  here, 
and  it  is  upon  the  plan  of  those  Acts,  that  this  Act 
seems  to  have  been  framed. 

As  for  the  reasons  of  this  Act  being  passed  within 
this  Province,  the  Governor,  who  gave  his  assent  there- 
to, I  suppose  has  informed  your  Lordships,  pursuant  to 
his  instructions,  and  it  seems  very  proper  he  should 
have  done  so,  as,  by  this  Act,  the  limiting  the  time  of 
the  continuance  of  a  sheriff  in  his  office,  is,  in  some  re- 
spect, restraining  the  power  he  derives  from  the  Crown 
of  appointing  sheriffs,  which,  before  this  Act  passed, 
was  without  limitation,  and  so  was  the  power  of  the 
Crown  in  England,  formerly  ;  but  by  several  Acts  that 
have  been  passed  here,  the  Legislature  have  limited  the 
time  of  a  sheriff  serving  in  his  office  :  Therefore,  it  ap- 
pears to  me,  that  as  some  of  the  neighboring  Provinces 
have  found  reason  to  pass  Acts  of  this  nature,  which 
are  now  subsisting,  and  as  the  Legislature  here  have  also 
found  reason  heretofore  to  pass  Acts  limiting  the  time  of 
a  sheriff's  continuance  in  his  office,  that  there  may  have 
been  reasons  to  induce  the  Legislature  of  this  Province 
to  do  the  same ;  all  which  must  be  submitted  to  your 
Lordships,  and  from  the  information  you  have  received, 
how  far  you  think  proper  to  recommend  the  confirming 

of  this  Act. 

MAT.  LAMB. 

LINCOLN'S  INN,  Sept.  30,  1749. 


THE  KING'S  PREROGATIVE  ABROAD.  163 

(3.)  Mr.-  Fands  opinion  on  the  King's  power  to  con- 
firm the  titles  to  land  in  Connecticut 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  transmitting  to  me  copies 
of  the  Charter  of  Connecticut,  and  the  petition  of  the 
agents  of  that  Colony  ;  and  also,  the  memorial  of  Mr. 
Winthorp  ;  and  desiring  my  opinion,  whether  His  Ma- 
jesty can,  by  virtue  of  his  prerogative,  and  without  the 
assistance  of  Parliament,  gratify  the  said  Colony  in  their 
request  ?  I  have  considered  of  the  same,  and  beg  leave 
to  observe  to  your  Lordships,  that  I  cannot  pretend  to 
say  whether  the  King,  by  virtue  of  his  prerogative,  can 
do  what  is  desired  by  the  petitioners.  But  I  must  submit 
it  to  your  Lordships'  consideration,  supposing  the  King 
had  a  power,  by  his  prerogative,  of  gratifying  the  re- 
quest of  this  Colony,  whether,  under  the  circumstances 
of  this  case,  it  would  not  be  more  for  His  Majesty's  ser- 
vice, to  take  the  assistance  of  Parliament,  as  that  meth- 

•  * 

od  will  be  the  least  liable  to  objection,  as  well  as  the  most 
certain  and  effectual  manner  of  gratifying  the  request 
of  the  petitioners. 

FRAN.  FANE. 
November  24,  1730. 


164  OPINIONS  OF  EMINENT  LAWYERS. 

(4.)  The  opinion  of  the  Attorney  and  $oticitor-Grene- 
ral,  Ryder  and  Murray,  on  the  King's  right  to  make 
new  grants  of  land  in  New  Hampshire. 

[NEW  HAMPSHIRE.— State  of  the  case  with  respect  to 
certain  townships  and  tracts  of  land  granted  by  the 
governments  of  the  Massachusetts  Bay  and  Con- 
necticut, in  New  England,  which  townships  and  tracts 
of  land  are  now  part  of  the  Province  of  New  Hamp- 
shire, by  the  determinination  of  the  boundary  line 
between  that  Province  and  the  Province  of  the  Massa- 
chusetts Bay,  in  the  year  1738.] 

Disputes  having  for  a  long  time  subsisted  between 
the  Provinces  of  the  Massachusetts  Bay  and  New  Hamp- 
shire, with  respect  to  their  boundaries,  in  1733  a  peti- 
tion was  presented  on  behalf  of  the  Province  of  New 
Hampshire,  praying  that  Commissioners  might  be  ap- 
pointed to  ascertain  the  boundaries. 

Upon  hearings  of  both  parties  before  the  Attorney 
and  Solicitor-General,  the  Board  of  Trade  and  the  Coun- 
cil, His  Majesty  was  pleased,  by  his  order  in  Council  of 
the  9th  of  February,  1736,  to,  direct  that  a  comjirissUxa 
should  be  prepared  and  pass  undies  the  Great.  Seal,  'au- 
thorizing Commissioners  to,  mark  osut  tb^  dividing  line 
between  the  Provinces  of  the  Massachusetts*  Bay  aijid 
New  Hampshire,  giving  liberty  to  either  party  therein, 
who  thought  themselves  aggrieved,  to  appeal  therefirom 
to  His  Majesty  in  Council.  In  pursuance  of  His  Ma- 
jesty's said  commission,  Commissioners  met  and  reported 
their  determination  specially,  upon  which  both  Pro- 
vinces appealed  to  His  Majesty  in  Council ;  and  after- 
wards their  Lordships  reported  to  His  Majesty,  as  their 
opinion,  that  the  northern  boundaries  of  the  Massachu- 


THE  KING'S  PREROGATIVE  ABROAD.         185 

setts  Bay  are  and  be,  a  similar  curve  line,  pursuing  the 
course  of  Merrimac  River,  at  three  miles  distance  from 
the  north  side  thereof,  beginning  at  the  Atlantic  Ocean, 
and  ending  at  a  point  due  north  of  a  place  in  the  plan  re- 
turned by  the  said  Commissioners,  called  Pantuket  Falls, 
and  a  straight  line  drawn  from  thence  due  west,  crossing 
the  said  river  till  it  meets  with  His  Majesty's  other  gov- 
ernments ;  and  that  the  rest  of  the  Commissioners7  said 
report  or  determination,  be  affirmed  by  His  Majesty.  In 
1738,  His  Majesty  was  pleased,  with  the  advice  of  his 
Privy  Council,  to  approve  of  their  Lordships'  report,  and 
to  confirm  it  accordingly;  in  consequence  whereof,  the 
line  has  been  marked  out. 

In  the  years  1735  ami  1736,  while  the  appeals  from 
both  the  Massachusetts  Bay  and  New  Hampshire  were 
depending  before  His  Majesty,  the  General  Assembly  of 
the  Massachusetts.  Bay  granted;  above  thirty  townships 
between  the  rivers  Merrimac  and  Connecticut,  which 
tow»ships,  upon  the  running  of  the  boundary  line  in 
1738,  feU  within  the  Province  of  New  Hampshire.  The 
conditions  of  these  grants  were,  that  the  grantees  should 
settle  the  said  townships  within  three  years  after  the 
date  of  their  respective  grants ;  but  this  condition  has 
been-  performed  by  very  few,,  if  by  any,,  of  the  grantees ; 
no  obligation  to  pay  quit-rents,  or  a  reservation  o£  pine 
trees-  fit  for  the  service  and  supply  of  His  Majesty's 
navy,  are  inserted  in  aay  of  these  grants,,  although  no 
grant  ought,  in  good  policy,  to  be  made  of  any  lands  in 
any  part  of  North  America,  without  both  these  provi- 
sions, which  have  been  thought  of  so  much  importance, 
and  so  absolutely  necessary  for  the  public  service,  that 
Mr.  Wentworth,  His  Majesty's  Governor  of  New  Hamp* 
shire, 


166  OPINIONS    OF  EMINENT    LAWYERS. 

to  pass  any  grant  of  lands,  without  enjoining  express 
conditions  of  cultivation,  the  reservation  of  quit-rents, 
and  the  preservation  of  such  pines,  as  are  of  size  for  the 
use  of  His  Majesty's  navy. 

There  are,  also,  about  sixty  thousand  acres  of  land 
situated  on  the  west  side  of  Connecticut  River,  which 
were  purchased  by  private  persons  from  the  government 
of  Connecticut,  to  whom  that  land  had  been  laid  out 
by  the  government  of  the  Massachusetts  Bay,  as  an 
equivalent  for  two  or  three  townships  which  the  Mas- 
sachusetts Bay  purchased  from  Connecticut  govern- 
ment. This  tract  of  land,  by  the  determination  of  the 
boundary  line  in  1738,  is  become  a  part  of  New  Hamp- 
shire, but  the  proprietors  of  it  are  subject  to  no  condi- 
tions of  improvement,  and  the  land  lies  waste  and  uncul- 
tivated. 

Question. — Whether  the  Crown  can  resume  the  lands 
granted  by  the  Province  of  the  Massachusetts  Bay,  un- 
der condition  of  cultivation,  those  lands  being  now  be- 
come a  part  of  New  Hampshire,  by  the  running  of  the 
boundary  line  in  1738,  in  cases  where  the  proprietors 
have  not  performed  the  condition  of  their  grants'?  and 
if  the  Crown  can,  what  is  the  most  advisable  and  regu- 
lar method  of  making  such  resumption  1  Whether,  in 
the  case  of  the  lands  granted  away  by  the  Province  of 
the  Massachusetts  Bay,  to  particular  persons,  without 
any  condition  of  cultivation,  the  Crown  can  now  enforce 
the  proprietors  of  such  lands  to  cultivat'e  them,  or  oblige 
them  to  take  these  lands  under  new  grants,  upon  the 
said  lands  being  made  a  part  of  the  Province  of  New 
Hampshire,  by  the  determination  of  the  boundary  line 
in  1738  ? 

We  are  clearly  of  opinion,  the  Crown  may  resume  the 


THE  KING'S  PREROGATIVE  ABROAD.         167 

lands  granted,  on  condition  of  settling  within  three  years, 
where  there  has,  in  fact,  been  no  settlement.  With  re- 
gard to  lands  granted  by  the  Massachusetts  Bay,  with- 
out any  such  express  condition,  where  there  has  been 
no  settlement,  as  they  appear  now  to  have  been  no  part 
of  that  Province,  their  grants  are  in  themselves  void,  as 
against  the  Crown,  and  there  appears  no  ground  to  sup- 
port them,  but  on  the  foot  of  the  direction,  which  we 
find  to  have  been  given  in  an  order  of  Council  of  the 
22d  of  January  1735,  when  the  commission  for  mark- 
ing the  dividing  line  between  the  two  Provinces  -was 
first  directed,  viz  :  "  that  due  care  should  be  taken,  that 
private  property  might  not  be  affected  by  it."  We  do 
not  find  that  this  direction  was  continued,  either  in  the 
order  of  the  9th  of  February,  1736,  on  which  the  present 
commission  issued,  or  in  the  commission  itself ;  or  that 
the  Commissioners  have,  in  their  report,  taken  notice  of 
any  such  private  rights ;  or  that  they  are  saved  in  the 
order  of  Council,  that  establishes  the  boundary  line. 
However,  considering  the  manifest  intent  of  these  sort 
of  grants,  whether  appearing  from  the  general  nature  or 
the  particular  recitals  or  considerations  of  them ;  that 
the  country  may  be  settled  and  inhabited,  and  the  tacit 
condition  attendant  upon  them ;  that  the  lands  should 
be  settled  in  a  reasonable  time  ;  we  think  due  care  will 
be  taken  of  the  private  property  arising  from  these 
grants,  if  His  Majesty  shall  be  pleased  to  give  these 
sort  of  proprietors  a  reasonable  time  to  come  in,  and  ac- 
cept new  grants  upon  terms  of  settling  the  lands  with- 
in a  certain  time,  reserving  the  old  quit-rent,  and 
pines  fit  for  His  Majesty's  navy ;  and  in  case  of  their 
not  accepting  these  terms,  His  Majesty  may  resume  the 
lands. 


168  OPINIONS  OF  EMINENT  LAWYERS. 

The  proper  manner  of  making  such  resumption,  after 
such  default,  is,  by  making  new  grants  to  such  as  shall 
be  willing  to  accept  them,  at  such  rents,  and  on  such 
terms  as  shall  be  thought  most  advisable. 

D.  RYDER. 

August  14,  1752.  W.  MURRAY. 

(5.)  The  opinion  of  the  Attorney-General ',  Yorke, 
on  the  manner  of  discussing  objections  to  the  King's 

grants. 

LINCOLN'S  INN,  Dec.  23,  1725. 

SIR  :  I  received  your  letter  to  Mr.  Solicitor-General 
and  myself^  reminding  us  of  the  reference  from  the 
Lords  Commissioners  of  Trade  and  Plantations,  upon  the 
papers  transmitted  by  Major  Drisdale,  Lieutenant  Gov- 
ernor of  Virginia.  We  have  long  ago  considered  those 
papers,  so  far  as  it  was  possible  for  us  to  do,  without  be- 
ing attended  by  the  agents  of  parties  concerned  ;  but  a 
caveat  having  been  entered  in  my  office,  on  the  behalf 
of  Colonel  Spotswood,  who  claims  a  property  in  the 
matters  in  question,  against  any  report  being  made  with- 
out his  being  heard,  according  to  the  common  course  of 
proceeding,  no  report  could  be  made  till  he  had  an  op- 
portunity of  laying  his  objections  before  us.  The  method 
of  doing  this  is,  for  the  agent  of  the  Province  to  sum- 
mon the  party  entering  the  caveat  to  attend,  to  make 
out  his  objections  at  a  time  appointed,  and  then  both 
sides  may  be  heard ;  or  if  nobody  attends  on  the  behalf 
of  the  person  entering  the  caveat,  a  report  will  be  made 
exparte.  The  want  of  doing  this  has  occasioned  the 
delay,  for  the  agent  of  the  Province  has  never  applied 
for  a  report,  or  for  a  summons  to  call  Colonel  Spotswood  or 
his  agent  before  us.  I  do  not  mention  this  so  as  to  blame 


THE  KING'S    PREROGATIVE  ABROAD.  169 

the  agent  for  any  neglect,  for  it  does  not  appe,ar  to  me, 
that  he  has  received  any  orders  from  his  principals  con- 
cerning this  affair ;  but  if  you  know  where  to  send  to 
him,  I  beg  you  would  direct  him  to  call  at  my  cham- 
bers, in  order  to  summon  Colonel  Spotswood,  or  his 
agents,  to  attend  upon  his  caveat,  and  then  this  matter 
may  soon  be  brought  to  a  conclusion.  You  will  be 
pleased  to  lay  this  letter  before  the  Lords  Commission- 
ers, that  their  Lordships  may  be  apprised  of  the  rea- 
sons why  they  have  not  received  our  report  before 
now. 

P.  YORKE. 

(6.)  The  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Yorke  and  Talbot,  on  the  question  between  the 
King  and  the  Proprietors  of  the  Northern  Neck,,  m 
Virginia. 

To  the  Right  Honorable  the   Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships ;  ..  / ) 

In  obedience  to  your  Lordships'  commands,  signified 
tp  us,  by  a  letter  from  Mr.  Popple,  referring  us  the  state 
of  the  case,  between  His  Majesty  and  the  Proprietors  of 
the  Northern  Neck,  in  Virginia,  together  with  the  copies 
of  two  Charters  granted  by  King  Charles  the  Second, 
and  King  James  the  Second ;  and  a  letter  from  Major 
Drisdale,  late  Lieutenant  Governor  of  Virginia,  hereunto 
annexed  ;  we  have  considered  the  same,  and  the  queries 
proposed  in  the  said  letter. 

The  first  of  which  queries  is :  What  shall  pass  by  the 

grant  of  felons'  goods,  in  the  said  letters  patent  of  King 
23 


170  OPINIONS  OF  EMINENT  LAWYERS. 

James  the  Second  ;  and  whether  the  goods  of  a  felo  de 
se  shall  not  pass  thereby  ? 

As  to  which,  we  are  of  opinion,  that  by  the  grant  of 
felon's  goods,  all  goods  in  possession,  belonging  to  any 
felon,  convicted,  which  are  within  the  district  described 
in  the  grant,  do  pass  ;  but  it  hath  been  determined,  that 
those  words  do  not  extend  to  any  debts  or  rights  of  ac- 
tion, nor  to  any  leases  for  years,  or  other  chattels  real, 
belonging  to  such  felon,  nor  to  any  goods  or  chattels, 
whatsoever,  of  &felo  de  se. 

The  second  question  is  :  Whether  fines  imposed  by 
the  King's  Court,  upon  persons  residing  within  the 
said  territory,  for  contempt  or  otherwise,  shall  not 
pass  by  the  said  letters  patent ;  and  what  fines  pass 
thereby  1 

As  to  this,  we  are  of  opinion,  that  no  other  fines  pass 
thereby,  but  such  as  are  imposed  by  the  King's  Courts, 
held  within  the  said  territory  ;  the  fines  imposed  at  the 
Courts,  let  of  the  grantees,  are  expressly  granted  to  them 
by  the  letters  patent  of  King  Charles  the  Second ;  and 
the  fines  imposed  by  the  King's  Courts,  held  without  the 
said  territory,  cannot,  with  propriety,  be  said  to  arise  or 
accrue  with  the  same. 

The  third  question  is  :  What  shall  pass  by  the  word 
forfeitures,  in  the  said  letters  patent  1 

As  to  this,  we  are  of  opinion,  that  all  goods  and  chat- 
tels, real  and  personal,  in  possession,  being  within  the 
said  territory,  and  forfeited  by  reason  of  any  judgment 
or  conviction  for  misdemeanor  or  felony,  and  all  interests 
in  any  lands  lying  within  the  said  territory,  forfeited 


THE  KING'S  PREROGATIVE  ABROAD.         171 

to  the  Crown  by  any  attainder  of  felony,  jio  pass  by  the 
word  forfeitures ;  but  this  word  is  so  general  and  exten- 
sive, and  the  cases  which  may  arise  upon  it  so  various, 
that  it  is  impossible  to  give  an  opinion  thereupon,  which 
may  answer  every  event,  without  having  the  particular 
facts  stated. 

The  only  question  contained  in  Major  Drisdale's  letter 
is :  How  far  the  Governor  of  Virginia  may  exercise  the 
authority  given  him  by  His  Majesty,  in  pardoning  of- 
fences and  remitting  forfeitures,  arising  in  the  Northern 
Neck. 

As  to  which,  we  are  of  opinion,  that  nothing  con- 
tained in  the  said  letters  patent,  restrain  him  from  exer- 
cising the  authority  of  pardoning  such  offences,  and  if 
the  pardon  be  granted  before  any  forfeiture  incurred  by 
judgment,  in  cases  of  misdemeanor,  or  by  flight,  con- 
viction or  judgment,  in  cases  of  felony,  the  pardon  will 
prevent  any  forfeiture ;  but  if  the  pardon  be  granted 
after  the  forfeiture  actually  incurred,  by  any  of  the 
means  aforesaid,  though  the  offence  will  be  thereby  dis- 
charged, the  right  of  the  grantees  to  the  things  for- 
feited will  continue. 

P.  YORKE. 

August  12,  1727.  C.  TALBOT. 

.  (7.)  The  opinion  of  the  Attorney  and  Solicitor,  Ry- 
der and  Strange,  concerning  the  grants  of  lands  in  Caro- 
lina, before  and  after  the  purchase,  by  the  King:  of  the 
Proprietors'  rights. 

Qucere  1st, — Whether  any  of  the  patents  granted  after 
their  Lordships  had  ordered  the  land-office  to  be  shut 
up,  can  be  deemed  valid,  other  than  such  as  were 
granted  by  order  in  London  ? 


172  OPINIONS  OP  EMINENT  LAWYERS. 

"We  are  of -opinion,  that  such  patents  may  be  good, 
notwithstanding  that  order  to  shut  up  the  land-office, 
if  the  Lords  Proprietors  were  either  made  privy  to 
those  grants,  or  after  they  were  made,  received  the  con- 
sideration for  them ;  otherwise  we  think  they  cannot  be 
supported. 

2d, — Whether  such  patents  as  were  granted  after  the 
King's  purchase,  by  the  Lords  Proprietors'  Governor, 
before  the  new  Governor  arrived  from  the  Crown,  par- 
ticularly such  as  appears  to  have  been  entered  in  the 
Secretaries'  books,  after  advice  received  in  the  Province 
of  the  King's  purchase,  are  to  be  deemed  good  ? 

We  are  of  opinion,  that  none  of  the  patents  mentioned 
in  the  second  quaere  can  be  deemed  good. 

3d, — Whether,  as  the  Act  of  Parliament  made  upon 
the  Crown's  purchase,  from  the  Lords  Proprietors,  that 
clause  in  it,  that  was  for  quitting  possessions  of  grants, 
takes  notice  of  such  only,  as  bore  date  before  1727.  If 
it  does  not  give  room  for  a  strict  examination  into  all 
such  as  were  issued  subsequent  to  that  time,  and  if  such 
grants  appear  to  have  been  irregularly  made,  they 
ought  not  to  be  voided,  but  as  to  such  as  were  granted 
for  defraying  the  expense  of  running  the  boundary  line, 
if  the  Crowii,  in  such  case,  ought  not  to  'bear  the  ex- 
pense ? 

We  think  it  proper  to  observe,  that  the  clause  referred 
to  in  this  quaere,  does  not  put  it  upon  the  patents  bear- 
ing date,  but  being  actually  made  before  1st  January, 
1727;  and  considering  the  extraordinary  circumstances 
attending  these  grants,  and  that  the  Crown  had  no  no- 
tice of  them,  at  the  time  of  the  purchase,  there  is  great 
reason  for  a  strict  inquiry  into  the  validity  thereof,  and 
to  avoid  them  for  such  irregularities.  But  as  those 'that 


,. 


THE  KING'S  PREROGATIVE  ABROAD.         1?3 

were  granted  for  defraying  the  expense  of  the  boundary- 
line,  seem  to  stand  in  a  much  more  favorable  light,  we 
think  it  reasonable  some  indulgence  should  be  shewn  to 
such  purchasers,  by  re-granting  on  the  terms  of  the  pur- 
chase what  they  or  their  assigns  have  actually  culti^ 
vated,  and  by  re-paying  a  proportion  of  the  considera- 
tion money  for  the  rest. 

4th, — Whether  such  patents  as  were  drawn  up  and 
signed  with  blanks,  and  not  registered  in  the  Secreta- 
ries' office  for  some  years  afterwards,  shall  be  deemed 
good  ;  if  their  not  being  registered,  is  not  an  evidence 
of  fraud  1 

We  are  of  opinion,  that  in  general,  such  patents  -as 
were  executed  with  such  blanks  as  are  mentioned  in  the 
case,  though  filled  up  afterwards,  are  void  ;  but  if  they 
have  been  attended  with  a  long  possession,  and  not  ob- 
tained fraudulently  or  irregularly  in  any  other  respect, 
we  think  they  ought  to  be  now  supported ;  and  as  to 
the  circumstance  of  not  being  registered  in  the  Secreta- 
ries' Office  for  some  years  afterwards,  it  not  being  stated 
how  far  or  within  what  -time  such  registry  is  necessary 
to  the  validity  of  such  grants,  nOr  for  :hOw  long  it  was 
neglected,  we  cannot  form  any  judgment,  What  influence 
that  will  have  upon  the  patents. 

5th, — Whether  such  ^Wtetfts  as  were  given  Out  with- 
out any  description  of  the  boundaries,  and  not  preceded 
by  regular  surveys,  returned  into  the  Secretaries'  office, 
are  to  be  deemed  valid. 

We  are  of  opinion,  that  the  want  of  a  description  of 
the  boundaries,  or  of  preceding  regular  surveys,  is  not, 
of  itself,  sufficient  to  destroy  such  patents,  unless  such 
circumstances  were  the  kn<3wn  requisites,  necessary  -to 
•Such  grants, ' and ' e*en  4n  miat'-eafoe,  4f  -the  »p*op*ietoi?s 


174  OPINIONS  OF  EMINENT  LAWYERS. 

have  had  the  consideration,  and  the  lands  have  been  en- 
joyed accordingly,  without  fraud,  we  think  such  grants 
ought  to  be  deemed  valid. 

6th, — Whether  those  grants  issued  by  virtue  of  war- 
rants that  had  lain  by  many  years,  are  to  be  deemed 
good,  notwithstanding  the  grants  assigned  them  were 
taken  out  irregularly,  and  particularly  those  after 
1727  t 

We  are  of  opinion,  that  the  circumstance  of  there 
having  been  warrants  many  years  before  the  grants 
issued,  is  not,  of  itself,  sufficient  to  support  grants  that 
would,  otherwise,  be  irregular  and  void ;  though  upon 
the  general  question  of  fraud,  that  circumstance  may, 
probably,  be  of  some  service  to  the  grantees,  according 
to  the  particular  circumstances  of  each  case,  whether 
such  grants  issued  before  or  after  the  year  1727. 

7th, — As  it  is  alleged  by  the  Governor,  that  many 
of  the  people  that  hold  lands  by  virtue  of  the  patents, 
formerly  granted  under  the  Lords  Proprietors,  possess 
much  greater  quantities  than  they  ought  to  hold,  by 
the  words  of  the  said  grants,  has  not  the  Crown  power 
to  re-survey  such  lands  )  and,  in  case  any  fraud  should 
appear,  what  steps  must  the  Crown  take  to  recover  its 
right  ? 

We  are  of  opinion,  that  whoever  possesses  a  much 
greater  quantity  than  they  ought  to  hold,  by  the  words 
of  a  grant  made  since  1st  of  January,  1727,  is  liable  to 
have  the  same  re-surveyed  on  behalf  of  the  Crown. 
But,  as  to  grants  made  before  1727,  upon  surveys  ac- 
tually made,  we  apprehend  (if  they  were  otherwise 
good  in  law,)  they  are  excepted  by  the  Act  2  Geo.  2., 
out  of  the  sale  to  the  Crown,  and,  therefore,  not  liable 
to  be  now  re-surveyed ;  and  as  to  such  cases,  wherein 


THE  KING'S  PREROGATIVE  ABROAD.         175 

a  re-survey  is  proper,  and  yet  the  grants  are  valid  in 
law,  we  are  of  opinion,  that  the  proper  remedy  is  by  in- 
formation, in  the  name  of  the  Attorney-General  of  the 
Province,  in  a  Court  of  Equity  there,  in  order  to  have 
the  real  quantity  set  out,  and  the  excess  pared  off  for 
the  benefit  of  the  Crown. 

8th, — In  case  any  of  these  grants  appear  to  be  voida- 
ble in  law,  what  is  the  proper  method  to  have  the  same 
vacated  1 

We  are  of  opinion,  that  the  proper  method  for  the 
Crown  to  recover  its  right,  (except  in  the  instances 
mentioned  in  the  answer  to  the  last  qugere,)  is  by  an  in- 
formation of  intrusion,  in  the  proper  Court  of  the  Pro- 
vince, and  in  case  of  error  there,  by  appeal  to  His  Ma- 
jesty in  Council. 

D.  RYDER. 

February  11,  1737.  J.  STRANGE. 

(8.)  2he  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Yorlce  and  Talbot,  on  grants  that  are  void  for  un- 
certainty. 
To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  letter  from  Mr.  Popple,  informing  us  that  your 
lordships,  having  had  under  consideration  several  pa- 
pers relating  to  the  settlement  of  Carolina,  and  observ- 
ing that  some  grants  were  made  by  the  late  Lords  Pro- 
prietors, of  large  tracts  of  land,  without  any  limitation 
therein  as  to  the  place  where  or  time  when  the  said 
land  is  to  be  taken  up  and  seated ;  and  transmitting  to 
us  the  enclosed  copy  of  a  grant  of  that  kind,  made  to 


176  WHiJ$&$  €tf?  BKUMpNT  LAWYER. 

Sir  Nathaniel  Johnson,  in  1686,  which  hath  never  yet 
been  put  in  execution,  together  with  the  enclosed  copy 
of  the  original  grant,  from  the  Crown  to  the  Lords  Pro- 
prietors of  Carolina,  for  our  further  information  ;  and 
desiring  us  to  consider  the  same,  and  report  our  opinion, 
in  point  of  law,  whether  such  grants  are  legal  and  of 
force.  We  have  considered  the  patent,  whereby  the 
said  Lords  Proprietors  did  grant  to  Sir  Nathaniel  John- 
son, the  honor  and  dignity  of  a  Cassique,  cum  duabus 
laroniis  quorum  singula  contineat  duodetim  mille  acras 
terra  ;  and  are  of  opinion  that,  in  regard,  the  place  where 
the  said  lands  lie  is  r\ot  described,  nor  any  method  provi- 
ded by  which  the  same  may  be  ascertained,  such  grant  of 
the  two  baronies  is,  by  reason  of  the  uncertainty  thereof, 
absolutely  void  in  law. 

P.  YORKE. 
July  28th,  1730.  C.  TALBOT. 


(9.)  The  opinions  ofjp.  Fane  ;  and  of  the  Attorney 
and  Solicitor-Greneral,  Wilier  and  Ryder,  on  the  ques- 
tion of  patenting  lands,  under  old  grants  from  the  Pro- 

prietaries of  Carolina. 

\ 

To  the  Right  Honorable  the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  desiring  my  opinion,  in  point  of 
law,  whether  the  townships  of  Purrysborough,  in  Carolina, 
being,  pursuant  to  His  Majesty's  instructions,  set  out  for 
the  use  of  certain  people  ;  and  His  Majesty  having  declar- 
ed that  all  the  land  within  six  miles  thereof,  shall  not  be 
taken  up  by  any  person  claiming  a  right  under  old 
grants  which  have  not  been  taken  up,  shall  not  be 


THE  KPtG/S  PREROGATIVE  A£R0AD.  177 


deemed  such  an  effectual  taking  up  of  the  said  land,  for 
His  Majesty's  use,  as  to  invalidate  the  claim  of  any  per- 
son who  shall  }  subsequent  to  the  said  instructions  and 
proclamation,  take  up  land  there.  And,  I  humbly  certi- 
fy to  your  Lordships,  that  I  think  the  '  grantees  of  the 
late  Lords  Proprietors,  under  the  general  power  granted 
to  them,  of  taking  such  quantities  of  land  in  such  places 
as  they  shall  think  fit,  since  they  neglected  to  do  it  pre- 
vious to  His  Majesty's  instructions  and  declaration,  shall 
not  now  be  permitted  to  pitch  upon  lands  already  set- 
tled ;  but  must  have  the  effect  and  operation  of  their 

grants  upon  lands  now  unsettled. 

FRAN.  FANE. 
July  23,  1734. 

The  grant  being  general  of  12,000  acres  of  land,  and 
the  same  being  not  described  therein,  nor  ascertained  by 
any  survey,  before  the  proclamation  of  Governor  John- 
son, we  are  of  opinion,  that  such  grantee  cannot  now 
take  up  lands,  within  six  miles  of  Purrysborough.  For 
the  right  of  the  Lords  Proprietors  is  now  vested  in  the 
Crown,  and  such  general  grant  could  certainly  not  have 
prevented  the  Lords  Proprietors  from  making  subse- 
quent grants  of  any  particular  lands,  provided  there  was 
still  sufficient  land  left  to  satisfy  such  precedent  grant  ; 
and  yet  this  would  be  the  necessary  consequence,  if  such 
general  grantee  might,  at  any  time  before  his  lands  are 
Ijet  out,  take  them  wherever  he  pleases,  and  disturb  the 
possession  of  any  subsequent  grantee.  This  would  not,., 
only  be  a  great  invasion  of  His  Majesty's  right,  but  would 
create  very  great  confusion,  and  would  tend  very  much 
to  the  disturbance  of  the  peace  of  the  country.  ,  .  / 

J.  WILLES. 

August  12th,  1734.  D.  RYDER. 

24 


178  OPINIONS  OF  EMINENT  LAWYERS. 

• 

(10.)  The  opinion  of  the  same  lawyers,  on  the  nullity 
of  a  similar  grant  to  Mr.  Hodgson. 
To  the  Kight  Honorable   the  Lords    Commissioners  of 

Trade  and  Plantations, 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands ,  signified 
to  us  by  Mr.  Popple,  we  have  considered  the  letters  pa- 
tent (a  copy  of  which  you  was  pleased  to  send  us)  from 
the  late  Lords  Proprietors  of  Carolina,  in  1715,  to  Wil- 
liam Hodgson,  Esq.,  and  we  are  of  opinion,  that  the 
words  are  too  general  to  pass  lands,  and  that  Mr.  Hodg- 
son hath  no  right  to  any  land  in  Carolina,  by  virtue  of 

the  said  patent. 

J.  WILLES. 

November  24th,  1735.  D.  RYDER. 

(11.)  The  opinion  of  Mr.  Fane,  on  the  validity  of  the 
grant  of  the  Secretary's  office  in  South  Carolina. 

To  the  Right  Honorable,  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands  signified 
to  me  by  Mr.  Hill,  I  have  considered  the  case  of  Mr. 
Hammerton,  relating  to  his  claim  of  the  office  of  Regis- 
trar of  the  Province  of  South  Carolina,  and  I  beg  leave 
to  say,  that  I  think  he  is  well  entitled  to  it,  by  virtue  of 
his  grant  from  the  Crown ;  and,  notwithstanding  there 
does  not  appear  to  beany  commission  of  Registrar  grant- 
ed by  the  Lords  Proprietors  till  the  year  1700,  yet,  as 
the  Acts  of  1694  and  1698  have  directed  what  is  to  be 
done  by  such  an  officer,  I  think  it  is  very  probable  that 
such  an  officer  was  appointed  before,  or  at  the  time  those 


THE  KING'S  PREROGATIVE  ABROAD.        179 

Acts  were  passed.  I  think,  therefore,  it  appears  to  be 
an  ancient  office,  and  held  and  exercised  by  the  Secreta- 
ry during  the  Lords  Proprietors'  time  ;  and  by  the  Acts 
of  1694  and  1698,  it  was  his  duty  to  register  all  patents 
and  grants  for  lands,  sales,  conveyances  and  mortgages 
of  land,  and  all  other  writings  that  were  required  to  be 
registered. 

By  the  grant  of  the  Lords  Proprietors  to  Mr.  Bertie 
in  1725,  he  is  empowered  to  do  and  perform,  not  only 
the  particular  matters  and  things  therein  mentioned,  but 
also  all  other  acts  usualtydone  by  the  former  Secretaries. 
The  present  grant  to  Mr.  Hammerton  pursues  the  very 
words  of  Mr,  Bertie's  grant,  as  to  the  description  of  the 
office,  and  empowers  the  grantee,  not  only  to  do  and  per- 
form the  several  matters  and  things  therein  particularly 
specified,  but  also  all  other  acts  usually  done  by  the  for- 
mer Secretaries ;  and  it  appears,  by  the  papers  referred 
to  me,  that  the  whole  business  of  Registrar  and  Secre- 
tary, was  exercised  by  .the  Secretary  without  any  molest- 
ation, from  1700  till  Mr.  Johnson  was  appointed  in 
1733.  This  being  the  case,  I  think  Mr.  Hammerton 
is  entitled  to  hold  and  enjoy  his  grant,  in  as  full 
an  extent  as  any  of  his  predecessors  have  done,  in  the 
time  of  the  Lords  Proprietors.. 

FRAN.  FANE. 

June  8th,  1739. 

(12.)  The  opinion  of  the  Attorney-General  WiZles,  on 
the  right  of  the  Proprietor  of  Maryland,  to  appoint  to 
offices,  under  the  King's  Charters. 

Qimre  1. — Whether,  by  the  Charter  of  Maryland,  the 
Lord  Proprietor  has  not  a  right  to  the  nomination  of  all 
officers  in  general,  civil  as  well  as  military  ? 


180  OPINIONS  OF  EMINENT  LAWYERS. 

Answer.— I  am  of  opinion,  that  by  the  Charter  of  Ma- 
ryland, the  Lord  Proprietor  has  a  right  to  nominate 
and  appoint  all  officers  in  general,  as  well  civil  as  mili- 
tary. 

Queer e  2.-r-Whether  there  is  anything  particular  in 
the  nature  of  the  office  of  Treasurer,  of  either  shore,  to 
exempt  it  from  the  said  nomination  1 

Answer. — It  does  not  appear  to  me,  that  there  is  any 
thing  so  particular  in  the  nature  of  the  office  of  Treasur- 
er, of  either  shore,  as  to  take  the  right  of  nomination  to 
this  office  from  the  Lord  Proprietor,  and  to  give  it  to 
any  other  persons. 

Quwre  3. — Whether  a  few  precedents  in  this  case,  of 
a  Treasurer  being  appointed  by  tripartite  concurrence  of 
both  Houses  of  Assembly  and  the  Governor,  can  or  do 
overthrow  His  Lordship's  right, 

Answer. — All  the  precedents,  except  one,  being  be- 
tween 1692  and  1716,  when  my  Lord  Baltimore  was 
out  of  possession,  I  am  of  opinion,  that  they  will  not 
overthrow  his  Lordship's  right,  founded  upon  such  plain 
words  in  the  Charter, 

'Qucere  4. — Whether  the  precedents,  hereunto  annex- 
ed, do  divest  the  Lord  Proprietor  of  his  right  of  nomina- 
tion to  the  office  of  Treasurer  or  Treasurers,  so  nominated, 
they  giving  the  security  the  law  directs  ? 

Answer. — The  Treasurer  or  Treasurers,  when  nomi- 
nated by  the  Proprietor,  must  give  such  security  as  the 
law  directs.  To  the  other  part  of  this  yucere,  I  have 
given  an  answer  already, 

J.  WILLES. 

January  22;  1736-7. 


THE  KING'S   PREROGATIVE  ABROAD.  181 

Fourthly. — Of  an  anomalous  exclusion  of  the  King's 
right  of  granting  a  colonial  office. 

(1.)  The  opinion  of  the  Solicitor-General  Montague, 
on  the  exclusive  right  of  the  Governors,  to  appoint  naval 
officers. 

WHITEHALL,  June  11,  1708. 

SIR  ;  Her  Majesty,  having  been  pleased  to  refer  to 
the  Lords  Commissioners  of  Trade  and  Plantations,  a  pe- 
tition from  Mr.  Samuel  Cox,  complaining  of  his  having 
been  turned  out  of  his  place  of  naval  officer,  in  Barba- 
does,  by  Mr.  Crow,  Governor  of  the  said  Island,  and 
praying  to  be  restored  to  his  said  place  ;  their  Lordships 
have  commanded  me  to  send  you  the  enclosed  papers, 
viz : 

A  clause  in  an  Act  of  Parliament,  passed  in  the  15th 
year  of  the  reign  of  King  Charles  the  Second,  entitled 
"  An  Act  for  the  encouragement  of  trade  ;" 

A  clause  in  an  Act  of  Parliament,  passed  in  the  sev- 
enth and  eighth  years  of  His  late  Majesty's  reign,  enti- 
tled "  An  Act  for  preventing  frauds  and  regulating  abu- 
ses in  the  plantation  trade  ;  :>l.J-' 

Copy  of  a  clause  in  Her  Majesty's  instructions  to  Mr. 
t^row,  relating  to  the  Acts  of  Trade  and  Navigation  ; 

Copy  of  a  clause  in  Mr.  €row's  instructions,  relating 
to  the  government  of  Barbadoes. 

Upon  consideration  of  which  papers,  their  Lordships 
desire  your  opinion  :  Whether,  by  the  forementioned 
Acts,  the  power  of  appointing  the  naval  officer  be  vested 
solely  in  a  Governor  of  the  Plantations,  exclusive  of  the 
Crown  '1 

In  case  the  sole  right  be  intho  Governor,  yet  the  said 
office  being  filled  by  virtue  of  letters  patent  from  the 


182  OPINIONS    OP    EMINENT    LAWYERS. 

Crown,  granted  and  enjoyed  during  the  time  of  two  pre- 
ceding Governors,  (which  is  the  case  of  Mr.  Cox,  the  pe- 
titioner): quare^  Whether  the  present  Governor  can  dis- 
possess him  of  the  said  office,  without  any  crime  or  mis- 
management alleged  against  him  ;  or  whether  the  right 
of  the  Governor  accrues  only  in  case  of  vacancy  during 
his  government. 

W.  POPPLE,  JUN. 

July  13th,  1708. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  the  llth  of  June  last,  I  have  con- 
sidered the  several  clauses  in  the  Acts  of  Parliament, 
made  the  fifteenth  year  of  King  Charles  the  Second,  for 
encouragement  of  trade,  and  the  seventh  and  eighth  years 
of  His  late  Majesty  King  William,  for  preventing  frauds 
and  regulating  abuses  in  the  Plantation  Trade  ;  and  I 
have  perused  the  clauses  in  Her  present  Majesty's  in- 
structions to  Mr.  Crow,  relating  to  the  Acts  of  Trade  and 
Navigation,  and  to  the  Government  of  Barbadoes. 

And  in  answer  to  the  first  qu&re  your  Lordships  have 
made  thereupon,  viz  :  Whether,  by  the  aforementioned 
Acts,  the  power  of  appointing  the  naval  officer  be  vest- 
ed solely  in  a  Governor  of  the  Plantations,  exclusive  of 
the  Crown  1  my  humble  opinion  is,  that  since  the  stat- 
ute of  the  fifteenth  of  Cha.  IT.  does  expressly  require  all 
masters  of  ships  coming  to  the  Plantations,  to  make 
known  their  arrival  and  give  in  an  inventory  of  their 
goods  to  the  Governor  there,  or  such  officer  as  shall  be  by 
him  hereunto  authorized  and  appointed,  before  any  goods 
be  unladen,  that  the  appointment  of  this  officer,  who  is 
now  called  the  Naval  officer,  doc3  solely  belong  to  the 


THE   KING'S  PREROGATIVE  ABROAD.  183 

Governor  of  such  Plantations ;  and,  therefore,  if  th  e 
Crown  constitute  a  person  to  execute  this  office,  and  the 
Governor  appoint  another  person,  I  think  all  masters  of 
ships  will  be  obliged  to  apply  to  the  naval  officer  appoint- 
ed by  the  Governor,  and  the  patentee  will  not  be,  in 
such  case:  empowered  to  do  the  things  required  by  such 
officer,  mentioned  in  the  said  Act  of  Parliament. 

This  being  my  opinion  concerning  the  authority  such 
officer  has,  when  constituted  as  before  is  mentioned,  I 
hold,  consequent ly,  that  the  said  office  can  never  be  said 
to  be  full  by  virtue  of  letters  patent  from  the  Crown, 
which  is  the  answer  I  return  to  the  second  qucere. 

And  to  the  third  qucere,  I  beg  leave  to  say,  that  I  do 
not  think  the  present  Governor  can  be  said  to  have  dis- 
possessed Mr.  Cox  of  the  said  office,  by  appointing  a  na- 
val officer ;  because,  if  Mr.  Cox  was  not  appointed  by 
the  Governor,  he  never  was  the  officer  mentioned  in  the 
Act  of  Parliament,  who  is  described  to  be  one  that  is  au- 
thorised and  appointed  by  the  Governor ;  but,  in  regard 
the  Governors  of  the  Plantations  are  put  in  by  the  Crown 
only  during  pleasure ;  I  take  it  for  granted,  no  one  will 
make  any  difficulty  in  appointing  such  naval  officer  as 
the  Crown  shall  best  approve  of. 

JAMES  MONTAGUE. 


184  OPINIONS  OF  EMINENT  LAWYERS. 

Fifth. — Of  the  King's  general  jurisdiction  over  his 
territories  abroad.  . 

(1.)  The  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Raymond  and  Yorke,  on  tlie  King's  power  to  establish 
a  Civil  Jurisdiction  at  Gibraltar. 

To  the   Right   Honorable  the  Lords  of  the  Committee 
of  His  Majesty's  most  Honorable  Privy  Council. 

May  it  please  your  Lordships  ; 

In  humble  obedience  to  your  Lordships'  order,  of  the 
25th  day  of  July  last,  referring  to  us  a  petition  of  seve- 
ral merchants  and  traders  to  the  town  and  garrison  of 
Gibraltar,  for  establishing  a  Court  of  Civil  Judicature 
there,  and  commanding  us  to  consider  thereof,  and  to 
prepare  a  draft,  or  proper  heads,  for  the  forming  a 
scheme  for  establishing  the  same,  and  to  present  the 
same  to  your  Lordships  for  your  consideration,  we  have 
considered  the  said  petition,  which  sets  forth,  that  ttue 
petitioners,  concerned  in  trade,  are  greatly  prejudiced 
already,  and  discouraged  to  continue  the  same,  for  the 
want  of  a  form  of  Civil  Government  established  there,(it 
being  at  present  under  that  of  a  military  one,)  whereby 
the  petitioners  are  not  secure  in  their  properties  ;  that 
His  Majesty  had  been  pleased  to  grant  his  royal  letters 
patent  for  that  purpose ;  it  is  yet,  notwithstanding,  in  the 
hands  of  military  magistrates. 

That  the  settling  a  Civil  Judicature  there  would  con- 
tribute very  much  to  the  advantage  of  trade  in  general, 
and  to  the  entire  satisfaction  of  all  His  Majesty's  tra- 
ding subjects,  as  well  as  to  the  great  advantage  of  His 
Majesty's  revenues ;  the  petitioners,  therefore,  humbly 
prayed,  that  His  Majesty  would  direct  that  a  Civil  Ju- 


THE  KING'S  PREROGATIVE  ABROAD.         185 

dicature  might  be  forthwith  appointed,  and  proper  per- 
sons be  nominated  to  go  from  hence,  and  a  competent 
•salary  to  be  allowed  them,  as  to  His  Majesty,  in  his 
great  wisdom  and  goodness,  should  seem  meet. 

And  we  humbly  certify  your  Lordships,  that  none  of 
the  persons  whose  names  are  subscribed  to  the  said  peti- 
tion, have,  either  by  themselves  or  their  agents,  made 
application  to  us  in  relation  thereunto.  But  we  have 
been  several  times  attended  by  Mr.  William  Hayles, 
who  solicits  this  affair,  and  once  by  Peter  Godfrey, 
Esq.,  one  of  the  members  of  Parliament  for  the  city 
of  London,  upon  which  attendances  we  have  endeav- 
ored to  inform  ourselves  of  the  present  condition  and 
circumstances  of  the  town  and  territories  of  Gibraltar, 
for  which  purpose,  two  papers  have  been  laid  before  us, 
one  of  them  marked  (A),  by  Mr.  Godfrey,  and  the  other 
marked  (B),  by  Mr.  Hayles.  The  substance  of  the  first 
(inter  alia)  is,  that  there  were  at  Gibraltar,  when  it  was 
taken,  one  nunnery,  two  convents,  (one  of  Franciscans, 
and  the  other  of  the  Cathedral  Church,)  an  hospital  of 
Franciscans,  the  convent  of  our  Lady  of  Europa,  four 
chapels,  and  one  thousand  families. 

That,  if  a  Civil  Government  was  established  there,  as 
in  the  American  Colonies,  or  in  some  such  form  as  fol- 
loweth,  the  place  would  defray  the  charges  of  maintain- 
ing itself,  and  in  a  few  years  would  bring  a  surplus  reve- 
nue, viz : 

A  Mayor,  Aldermen,  Common  Council,  to  be  annually 
chosen  out  of  the  English  residing  there  ;  two  Sheriffs, 
to  be  ou.i  of  the  Common  Council ;  two  Bailiffs,  to  be 
appointed  by  the  Sheriffs ;  a  Town  Clerk ;  a  Judge  of 
the  Admiralty  ;  a  Chamberlain ;  a  Treasurer  for  the 
Colony ;  a  Muster-Master,  to  be  appointed  by  the  Mayor 
25 


186  OPINIONS    OF  EMINENT    LAWYERS. 

and  Aldermen,  to  muster  the  militia  and  the  garrison, 
whenever  the  garrison  is  mustered,  and  to  sign  the  mus- 
ter-rolls with  the  Major  ;  the  militia  to  guard  the  two 
towers  next  the  land,  to  prevent  the  soldiers  deserting  ; 
a  house  to  be  settled  for  the  town  hall,  where  the  records 
shall  be  kept,  and  the  Courts  of  Justice  act,  and  the  ma- 
•  gistrates  assemble ;  a  house  to  be  settled  for  the  Governor 
and  officers  of  the  garrison  ;  the  private  sentinels  to 
have  proper  barracks  assigned  them  ;  no  Consuls  of  any 
nation,  or  Jews,  to  reside  there. 

The  substance  of  the  latter  paper  is,  that  at  least  two 
hundred  of  His  Majesty's  subjects,  inhabiting  in  Gibral- 
tar, suffer  for  want  of  a  Court  of  Civil  Judicature 
being  established  there,  being  more  ill  treated  than 
strangers. 

That  the  want  of  a  Civil  Court  not  only  affects  His 
Majesty's  subjects  inhabiting  there,  but  all  merchants  in 
general,  trading  from  Great  Britain  and  Ireland  up  the 
Mediterranean,  great  numbers  of  whom  would  build 
houses,  cellars  &c.,  upon  the  ruins  where  there  is  space 
enough,  so  that  there  would  be  a  spacious  town,  and  well 
inhabited  by  His  Majesty's  subjects,  if  the  indulgence  of 
a  Civil  Court  was  granted,  and  His  Majesty's  gracious 
permission  for  their  building  there. 

That  the  Spaniards  who  inhabit  there,  have  a  Spanish 
Consul  and  a  Spanish  lawyer,  who  decide  all  differences 
that  arise  between  them. 

That  the  French  who  dwell  there,  are  governed  after 
the  same  manner  as  the  Spaniards,  who  pay  large  rents 
to  the  Governor,  monthly,  for  their  houses,  which, 
if  applied,  would  contribute  in  a  great  measure  to- 
wards the  subsistence  of  His  Majesty's  forces  in  that 
garrison. 


THE  KING'S  PREROGATIVE  ABROAD.  187 

That  the  Genosese  who  live  there,  have,  likewise,  a 
Consul  and  a  lawyer  of  their  own  nation,  to  decide  their 
disputes. 

That  the  Dutch  who  are  there,  have,  also,  a  Dutch 
Consul,  &c.,  who  determine  their  differences. 

And  we  beg  leave  to  take  notice  to  your  Lordships, 
that  the  Lords  Commissioners  of  Trade  and  Plantations, 
in  obedience  to  an  order  of  the  Lords  Justices  in  Coun- 
cil, referring  to  them  the  petition  of  the  said  Mr.  Wil- 
liam Hayles  and  others,  praying  that  a  Court  of  Justice 
may  be  erected  at  Gibraltar,  for  deciding  disputes  be- 
tween merchants  and  traders,  by  their  report  of  the  2d 
of  August,  1720,  represented  to  their  Excellencies,  that 
they  conceived  Courts  at  Gibraltar,  erected  after  the 
manner  practiced  according  to  the  Common  Law  in 
Great  Britain,  or  in  imitation  thereof,  or  such  as  are 
established  in  His  Majesty's  colonies  abroad,  would  be 
very  dilatory  and  expensive,  and,  consequently,  not  well 
adapted  to  the  decision  of  transitory  and  mercantile 
disputes  in  a  free  port,  where  there  are  but  few  inhabit- 
ants ;  therefore,  they  proposed  to  their  Excellencies, 
that  a  more  summary  Judicatory  should  be  established 
at  Gibraltar,  and  submitted  to  their  Excellencies, 
whether  the  Judge-Advocate  of  the  garrison,  for  the 
time  being,  might  not  be  authorized,  upon  an}7  dispute 
that  might  arise  there,  to  call  to  his  assistance  two  mer- 
chants, disinterested  persons,  by  whose  advice  he  should 
decide  between  the  two  parties  contending,  from  which 
judgment  an  appeal  might  lie  to  the  Governor ;  and  in 
case  of  a  considerable  value,  another  appeal  from  the 
Governor's  decision,  to  His  Majesty  in  Council,  as  the 
last  resort. 

That  their  Excellencies,  the  Lords  Justices,  having 


188  OPINIONS  OF  EMINENT  LAWYERS. 

approved  the  report  of  the  said  Lords  Commissioners 
of  Trade  and  Plantations,  by  their  order  in  Council  of 
the  llth  of  August,  1720,  were  pleased  to  order,  that 
we  should,  forthwith,  prepare  a  draft  of  such  powers 
as  might  be  fitting  for  His  Majesty  to  grant  upon  the 
said  occasion  ;  together  with  proper  regulations  to  be 
observed  in  the  execution  of  the  said  new  Judicature  at 
Gibraltar,  and  to  report  the  same  to  their  Excellencies 
in  Council. 

In  obedience  to  which  order;  we  prepared  a  draft  of 
an  instrument,  to  pass  the  Great  Seal  of  Great  Britain, 
for  erecting  a  Court  of  Judicature  in  Gibraltar,  which, 
being  laid  before  their  Excellencies,  they  were  pleased 
to  approve  the  same,  after  some  few  alterations  made 
therein  ;  after  which  a  commission  passed  the  Great 
Seal,  directing  and  empowering  the  Judge-Advocate,  for 
time  being,  together  with  two  merchants  within  the 
said  town  of  Gibraltar,  to  be  appointed,  from  time  to 
time,  by  the  Judge-Advocate,  and  any  two  of  them 
(whereof  the  Judge- Advocate  to  be  one,)  to  be  a  Court, 
to  which  Court  full  power  and  authority  is  given,  to 
hold  plea  of,  and  to  hear  and  determine,  in  a  summary 
way,  all  pleas  of  debt,  account  or  other  contracts,  tres- 
passes, and  all  manner  of  other  personal  pleas  whatso- 
ever, between  any  person  or  persons  whatsoever,  residing 
or  being  within  the  said  town  or  precincts,  or  territories 
thereof,  and  to  give  judgment  and  sentence  according 
to  justice  and  right;  and  the  method  of  proceeding 
and  manner  of  execution  is  thereby  prescribed,  as,  by 
the  said  commission,  an  entry  whereof  is  made  in  the 
Council  books,  to  which  we  beg  leave  to  refer,  will 
appear. 

This  commission,  passed  in  that  manner  and  upon  the 


THE  KING'S  PREROGATIVE  ABROAD.  189 

consideration  above-mentioned,  is  still  continued  in 
force,  and  no  objection  has  been  made  before  us,  as  to 
the  substance  of  it,  but  only  as  to  the  persons  appointed 
to  be  Judges,  the  principal  whereof  being  the  Judge- Ad- 
vocate, and  he  having  authority,  from  time  to  time,  to 
name  the  two  merchants  that  are  to  act  with  him,  it  is 
objected  that  this  is  too  great  a  power  to  be  entrusted 
with  a  single  person,  especially  with  one  who  is  an  offi- 
cer of  the  garrison  and  subject  to  the  command  of  the 
military  Governor,  and  upon  that  account  the  more  im- 
proper ;  and,  therefore,  it  has  been  proposed  that  per- 
sons should  be  expressly  appointed,  by  His  Majesty's 
commission,  to  be  Judges,  who  understand  the  law  and 
are  qualified  for  the  regular  execution  of  justice,  with 
competent  salaries  for  their  trouble,  which  may  be  de- 
frayed by  the  revenues  of  the  place. 

And  we  further  certify  your  Lordships,  that  the  said 
commission  was  passed  at  the  instance  of  the  said  Mr. 
Hayles,  upon  a  particular  occasion,  which  was  repre- 
sented, in  a  very  pressing  manner,  to  require  great  des- 
patch, in  order  to  the  recovering  of  certain  debts  then 
in  great  danger  of  being  lost ;  and  for  that  reason,  the 
Judge-Advocate  having  been  proposed  by  the  Lords 
Commissioners  for  Trade  and  Plantations,  and  being 
found  to  be  the  most  proper  person  then  ready  upon  the 
place,  the  commission  passed  in  that  manner ;  but  we 
are  humbly  of  opinion,  that  in  case  a  standing  Judica- 
ture be  erected,  to  have  continuance  in  the  said  town 
and  territory,  it  may  be  proper  that  persons  should  be 
expressly  named  Judges  in  the  very  commission,  who 
may  be  more  particularly  qualified  for  the  administration 
of  civil  justice.  '  V 

We   beg  leave  to  observe  to  your  Lordships,  that, 


190  OPINIONS  OF  EMINENT  LAWYERS. 

though  the  petition  concludes  with  a  prayer  only  for  the 
establishing  a  Court  of  Civil  Judicature  and  appointing 
of  Judges,  yet  it  sets  forth  that  the  petitioners  are 
greatly  prejudiced  in  their  trade,  for  want  of  a  form  of 
•Civil  Government,  and,  upon  this  head,  we  cannot  but 
take  notice  to  your  Lordships,  that  it  has  been  repre- 
sented to  us,  that  the  place  is  at  present  wholly  desti- 
tute of  any  Civil  Government,  and  that  the  property  of 
the  lands  and  houses  has  never  been  settled  since  the 
conquest  thereof,  in  the  time  of  the  late  Queen,  but  re- 
mains precarious. 

Upon  this  information,  we  have  made  the  best  inquiry 
we  could,  whether,  by  the  articles  of  surrender,  or  any 
treaties,  declarations,  or  other  public  acts,  ratified  by 
the  Crown  of  Great  Britain,  any  legal  provision  has 
been  made,  or  rules  given  for  that  purpose,  and  have 
been  able  to  find  none  ;  and,  therefore,  we  are  humbly 
of  opinion,  that  as  a  fundamental,  necessary  to  any  form 
of  civil  government,  without  which  Courts  of  Judica- 
ture will  be'  in  a  manner  useless,  and  for  the  quieting  of 
the  inhabitants  in  their  possessions,  some  settlement 
ought  to  be  made  of  the  property  in  the  houses  and  lands 
within  this  town  and  territories. 

It  has  also  been  represented  to  us,  that  no  laws  have 
been  given  to  this  place  for  fixing  the  nature  of  crimes, 
and  the  punishments  to  be  inflicted  on  offenders,  but  that 
the  same  are,  at  present,  punished  by  martial  law,  or,  at 
least,  in  a  way  of  military  discipline. 

This  we  apprehend  to  be  a  defect  which  requires  a 
remedy ;  and  that  laws  should  be  given  for  this  purpose, 
and  powers  to  civil  magistrates  to  put  them  in  execu- 
tion, in  some  fixed  Qourt  of  Justice. 

Ill  order  to  enable  ourselves  the  better  to  lay  before 


THE  KING'S  PREROGATIVE  ABROAD.         191 

your  Lordships,  heads  of  a  scheme,  pursuant  to  your 
Lordships'  order,  we  thought  it  not  improper  to  inform 
ourselves  of  what  had  been  done  upon  "the  first  settle- 
ment of  Tangier,  in  the  time  of  King  Charles  the 
Second,  and  of  His  Majesty's  colonies  and  plantations  in 
the  West  Indies  ;  and  for  that  purpose,  have  perused  a 
copy  of  letters  patent  passed  for  Tangier,  and  also  have 
caused  to  be  laid  before  us  copies  of  the  commissions 
which  were  granted  for  the  islands  of  Jamaica  and  the 
Caribbee  Islands,  upon  settlement  thereof,  which  are 
hereunto  annexed. 

As  to  Tangier,  the  method  then  taken  was  thus,  viz : 
By  letters  patent,  dated  the  20th  of  April,  1668,  the 
town  was  declared  to  be  a  free  city,  all  the  inhabitants 
(being  Christians,)  were  incorporated  by  the  name  of 
Mayor,  Aldermen  and  Commonalty,  with  a  Recorder 
and  twelve  Common  Councilmen;  out  of  the  Mayor, 
Recorder  and  Aldermen  was  constituted  a  Court  of 
Record  for  determining  civil  causes,  and  a  Court  of 
Oyer  and  Terminer  for  criminal  matters,  with  a  general 
jurisdiction,  (except  as  to  persons  in  actual  pay  in  the 
garrison.)  Besides  which,  a  particular  Court  was  erected 
for  mercantile  causes  ;  and  all  proceedings  were  directed 
to  be  according  to  the  laws  of  England,  as  near  as  the 
condition  of  the  place  and  safety  of  the  inhabitants  would 
permit. 

The  first  commission  for  the  government  of  Jamaica?, 
issued  since  the  restriction,  bears  date  the  8th  February, 
18th  Car.  II.  By  that  the  Governor  is  directed  to  take 
to  him  a  Council  of  twelve  of  the  inhabitants,  and 
(amongst  other  tilings,)  power  given  to  him,  by  the  ad- 


192  OPINIONS  OF  EMINENT  LAWYERS. 

vice  of  five  or  more  of  such  Council,  to  erect  such  and 
so  many  Civil  Judicatures,  with  autnrrity  to  administer 
oaths,  as  should  be  held  necessary. 

The  commission  for  the  Caribbee  Islanu.;,  v/hich  has 
been  laid  before  us,  bears  date  the  3d  of  January,  18th 
Car.  II.  By  that  commission,  the  Governor  is  to  appoint 
a  Council  of  twelve  in  each  island,  and  a  general  power 
is  given  him,  with  the  advice  of  such  Councils  respect- 
ively, to  appoint  all  forms  and  ways  of  government, 
magistracy  and  execution  of  justice,  and  to  erect  Courts 
of  Judicature  for  all  causes,  criminal  and  civil,  and  to 
institute  forms  of  proceeding ;  to  appoint  Judges  and 
other  officers,  and  to  ascertain  their  respective  authori- 
ties and  fees  ;  provided,  that  all  the  constitutions  and  es- 
tablishments so  made,  should  be  transmitted  to  be  al- 
lowed or  disallowed  by  His  Majesty  in  Council.  A  Gen- 
eral Assembly  is  appointed,  to  consist  of  members  to  be 
chosen  by  each  township,  who  are  to  make  laws  with 
the  assent  of  the  Governed  But  power  is  given  to  the 
Governor,  with  the  advice  of  the  respective  Councils,  to 
make  laws  on  eir^ro^nt  occasions,  without  any  Assem- 
bly, provided  they  should  be  as  near  the  laws  of  Eng- 
land as  the  nature  and  constitution  of  the  country  would 
admit,  and  did  not  charge  or  take  away  the  right  of  any 
persons  in  their  freehold,  goods  and  chattels.  Power  is 
also  given  to  the  Governor,  to  grant  parcels  of  land,  un- 
planted,  to  planters,  under  certain  terms  and  rc^erva- 
tions,  and  a  register  to  be  kept  for  all  conveyances  ;  be- 
side.^  which,  the  commission  descends  to  other  particu- 
lars, which  we  conceive  not  to  be  material  to  be  stated 
to  your  Lordships. 

By   these  instances   it  appears,  that  sometimes  the 


THE  KING'S  PREROGATIVE  ABROAD.  193 

Crown  has  thought  fit,  by  particular  express  provisions 
under  the  Great  Seal,  to  create  and  form  the  several  parts 
of  the  Constitution  of  a  new  Government,  and  at  other 
times  has  only  granted  general  powers  to  the  Governor 
to  frame  such  a  Constitution  as  he  should  think  fit,  with 
the  advice  of  a  Council,  consisting  of  a  certain  number 
of  the  inhabitants,  who  might  be  supposed  to  be  most  ca- 
pable of  judging  what  the  condition  of  the  country  re- 
quired, and  this  subject  to  the  approbation  or  disallow- 
ance of  the  Crown  ;  but  which  of  these  two  methods  is  fit- 
test to  be  allowed  in  this  case,  depends  upon  the  particular 
circumstances  of  the  place,  of  which,  we  apprehend,  we 
have  not  obtained  sufficient  information  to  enable  us  to 
make  any  certain  judgment ;  but,  if  there  be  about  one 
thousand  families  in  the  town,  as  is  represented  in  Mr. 
Godfrey's  paper,  and  amongst  those  about  two  hundred 
of  His  Majesty's  subjects,  as  in  Mr.  Hayles'  paper 
(which  he  explains  to  us  to  mean  British  and  Irish), 
we  beg  leave  to  submit  it  to  your  Lordships,  whether, 
upon  that  consideration j  a  Constitution  framed  strictly 
according  to  the  forms  of  the  Common  Law  of  England, 
may  be  convenient  or  practicable. 

As  to  the  settlement  of  property,  we  apprehend  that 
may  be  done  by  virtue  of  powers  to  be  given  by  His 
Majesty  to  the  Governor,  for  making  grants  of  such  hou- 
ses and  lands,  whereof  the  property  clearly  remains  in 
the  Crown  (under  fit  regulations),  and  also  for  confirm- 
ing the  titles  of  others,  by  some  general  declaration,  in 
such  manner  as  shall  be  thought  proper. 

We  beg  leave  to  lay  these  matters  before  your  Lord- 
ships for  your  consideration,  because  we  find  the  recitals 
of  the  petition  lead  thereto,  and  some  of  them  may  be 
necessary  to  receive  a  determination  before  any  Court 
26 


194  OPINIONS  OP  EMINENT  LAWYERS. 

of  Judicature  whatsoever  can  have  its  due  effect ;  but 
the  prayer  of  the  said  petition,  and  your  Lordships' 
commands  to  us,  going  no  further  than  to  prepare  a 
draft  or  proper  heads,  for  establishing  a  Court  of  Civil 
Judicature,  and  the  objection  made  before  us  to  the 
Court  already  established  being  only  with  regard  to  the 
persons  thereby  appointed  Judges,  we  are  humbly  of 
opinion,  that  if  proper  persons  are  expressly  nominated 
Judges  by  His  Majesty,  in  the  commission  itself  (as 
is  above  mentioned),  the  present  form  may,  in  the  other 
parts  thereof,  not  be  improper. 

ROBT.  RAYMOND. 

December,  14,  1*722.  PHIL.  YORKE. 

* 

(2.)  The  opinion  .of  tlie  Attorney-General  Northey, 
that  the  Queen  might  establish  a  Court  of  Equity  in  Mas- 
sachusetts Bay. 

[Extract  from  the  Charter  of  Massachusetts  Bay,  and 
Mr.  Attorney-General's  report  upon  a  clause  in  the 
Charter  of  the  Massachusetts  Bay,  relating  to  the  es- 
tablishing of  Courts.] 

"  And  we  do  of  our  further  grace,  certain  knowledge, 
and  mere  motion,  grant,  establish  and  ordain,  for  us,  our 
heirs,  and  successors,  that  the  great  and  General  Court 
or  Assembly  of  our  said  Province  or  territory,  for  the 
time  being,  convened  as  aforesaid,  shall  forever  have 
full  power  and  authority  to  erect  and  constitute  Judic?v'- 
tories,  and  Courts  of  Record,  or  other  Courts,  to  be  held 
in  the  name  of  us,  our  heirs  and  successors,  for  the  hear- 
ing, trying  and  determining  of  all  manner  of  crimes, 
offences,  pleas,  processes,  plaints,  actions,  matters,  cau- 
ses, and  things  whatsoever,  arising  or  happening  within 


THE  KING'S    PREROGATIVE  ABROAD.  195 

our  said  Province  or  territory,  or  between  persons  in- 
habiting or  residing  there,  whether  the  said  crimes  be 
criminal  or  civil,  and  whether  the  said  crimes  be  capi- 
tal or  not  capital,  and  whether  the  said  pleas  be  real, 
personal  or  mixed,  and  for  awarding  and  making  out  of 
execution  thereupon :  To  which  Courts  and  Judicatories 
we  do,  hereby,  for  us,  our  heirs  and  successors,  give  and 
grant  full  power  and  authority,  from  time  to  time,  to  ad- 
minister oaths  for  the  better  discovery  of  truth  in  any 
matter  in  controversy,  or  depending  before  them." 

On  consideration  of  this  clause,  if  there  be  no  other 
clauses  that  exclude  the  power  of  the  Crown,  I  am  of 
opinion  Her  Majesty  may,  by  her  prerogative,  erect  a 
Court  of  Equity  in  the  said  Province,  as  by  her  royal 
authority  they  are  erected  in  other  Her  Majesty's  Plant- 
ations ;  and  it  seems  to  me  that  the  General  Assembly 
there  cannot,  by  virtue  of  this  clause,  erect  a  Court  of 
Equity. 

EDW.  NORTHBY. 

April  21,  1703-4. 

(3.)  Mr.  West's  opinion  on  the  King's  right  to  estab- 
lish a  new  office  of  law  at  £arbadoes. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  the  following  Acts  of  Assembly, 
made  and  passed  in  the  Island  of  Barbadoes ;  and,  as  to 
the  first  Act,  entitled  "  An  Act  to  empower  the  Governor, 
or  Commander-in-chief  for  the  time  being,  and  Council, 
to  commute  the  value  of  powder,  arms  and  ammunition, 


196  OPINIONS  OF  EMINENT  LAWYERS. 

or  other  stores,  that  are  or  shall  be  found  wanting  in 
the  accounts  of  store-keepers  of  the  magazines  in  this 
Island,  and  to  reduce  the  same  into  money."  I  am  of 
opinion,  that  it  is  not  proper  to  be  passed  into  law. 
Upon  occasion  of  this  Act,  I  have  been  attended  by  Mr. 
Tryon,  who  appeared  as  a  Solicitor  against  its  being 
confirmed,  and  also  by  the  agents  for  the  Island  in  de- 
fence of  it.  And,  as  to  the  subject  matter  of  the  Act,  viz : 
the  commuting  the  value  of  powder,  arms  and  ammuni- 
tion, for  ready  money,  I  submit  that  to  your  Lordships' 
judgment,  upon  consideration  of  the  annexed  reasons, 
both  for  and  against  it,  that  were  left  with  me  by  the 
above  named  Solicitor  and  Agents. 

As  to  the  other  parf  of  the  Act,  which  relates  to  the 
proceedings  against  Mr.  Peers,  late  one  of  the  store-keep- 
ers for  the  Island  of  Barbadoes  ;  (as  there  is  a  petition 
now  pending  in  the  Privy  Council,  on  the  behalf  of  the 
said  Mr.  Peers  or  his  representative,  against  the  said  bill, 
upon  which  their  Lordships  have  not,  as  yet,  come  to 
any  determination  ;)  I  believe  your  Lordships  will  not 
expect  any  opinion  from  me,  on  that  part  of  the  bill. 

But  then,  as  to  another  part  of  the  bill,  which  con- 
firms the  process  executed  by  the  Marshal  of  the  Com- 
mittee of  Accounts,  I  am  of  opinion,  that  it  is  contrary 
to  the  King's  Prerogative  ;  inasmuch  as  the  committee 
do  thereby  pretend  to  establish  a  new  officer  of  justice, 
and  such  an  officer  as  no  committee  of  our  House  of 
Commons  at  home,  ever  yet  pretended  to  appoint. 

The  second  Act  is  entitled,  "  An  Act  for  the  better 
ordering  and  regulating  the  proceedings  of  His  Majesty's 
Court  of  Common  Pleas  within  this  Island."  Upon  occa- 
sion of  which  Act,  I  have,  likewise,  been  attended  by 
the  Solicitors  against  its  being  passed,  and  I  beg  leave 


THE  KING'S  PREROGATIVE  ABROAD.         197 

• 

to  annex  to  my  report,  a  copy  of  such  reasons  against, 
and  objections  to  the  Act,  as  they  thought  fit  to  leave 
with  me,  upon  this  occasion ;  and  as  to  the  subject  mat- 
ter of  the  Act,  I  am  humbly  of  opinion,  that  it  is  not  prop- 
er to  be  passed ;  though,  at  the  same  time,  the  inten- 
tion of  this  law  seems  to  me,  not  only  to  be  very  reason- 
able, but  very  fit  to  be  passed  some  time  or  other,  when 
drawn  into  proper  form  ;  for,  if  a  special  verdict  be  not 
found  in  any  case,  where  either  party  thinks  himself  ag- 
grieved by  the  judgment,  it  is  exceeding  difficult,  if  not 
impossible,  to  have  a  remedy  by  appeal,  to  the  Council 
at  home  ;  since,  without  a  special  verdict,  the  whole  of 
the  case  can  never  fully  appear.  If,  therefore,  they  had 
confined  the  obligation  they  put  their  Judges  under,  of 
directing  a  special  verdict,  when  desired,  to  such  causes 
only,  where  the  value  of  the  thing  in  question  was  equal 
to  what,  by  His  Majesty's  instructions,  they  are  at  lib- 
erty to  appeal  home  for,  I  should  have  thought  the  Act 
well  calculated  to  render  the  remedy  the  subject  there 
has  against  any  erroneous  judgment,  by  appealing  to  the 
Privy  Council,  more  easy  and  practicable,  and  also  to 
make  the  dependence  of  those  people  still  close  to  our 
Government  at  home.  But  the  obliging  all  Judges  to 
direct  a  special  verdict,  without  any  reason  assigned,  up- 
on the  bare  request  of  the  party,  and  that  in  cases  of 
never  so  small  a  value,  is  certainly  putting  it  in  the  pow- 
er of  the  debtor,  most  unreasonably,  to  delay  his  creditor 
in  the  recovery  of  just  debts.  But  the  penalty  inflicted 
upon  Judges,  who  deny  or  neglect  to  direct  a  special 
verdict,  when  desired,  by  making  them,  besides  an  in- 
capacity, liable  to  the  damages  .sustained  by  the  party, 
and  those  to  be  recovered  before  any  Justice  of  Peace, 
as  in  case  of  servant's  wages,  is  so  absurd,  that  I  believe 


198.  OPINIONS  OP  EMINENT  LAWYERS. 

• 

your  Lordships  will  not  think  it  proper  to  be   passed 
into  law. 

As  to  the  several  Acts  following,  viz :  "  A  supplement- 
al Act  to  the  Act  to  enable  and  empower  the  Treasurer, 
to  pay  unto  Dr.  Home,  the  arrears  due  him,  on  account 
of  the  French  prisoners,  during  the  late  war  ;"  "An  Act 
for  enlarging  the  time  for  sale  of  effects  attached  for 
parish  dues  in  arrear;"  "  An  Act  to  empower  the  Treas- 
urer to  defray  the  expenses  of  the  late  Grand  Sessions, 
held  for  the  body  of  the  Island,  the  9th,  10th.  llth  and 
12th  of  December,  1718;"  "An  Act  for  abrogating  the 
oath  appointed  by  an  Act  of  this  Island,  to  be  taken  by 
Attornies  employed  to  draw  up -special  verdicts,  and  ap- 
pointing another  oath  instead  thereof;"  "  An  Act  for 
the  encouragement  of  William  Masset  in  his  new  pro- 
jection of  making  worms  and  altering  stillheads,  for  the 
better  improvement  of  distillation :"  1  have  no  objec- 
tion to  their  being  passed  into  law. 

RICH.  WEST. 

June  18,  1720. 

(4.)  The  opinion  of  the  Attorney  and  Solicitor-Q-en- 
ral,  Ryder  and  Murray,  on  the  King's  right  of  estab- 
lishing a  Government  in  Georgia,  upon  the  surrender  of 
the  Trustees. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  desire,  signified  to  us 
in  Mr.  Hill's  letter  of  the  17th  inst.,  setting  forth  that 
the  Lords  of  the  Committee  of  Council  for  Plantation  af- 
fairs, had  referred  to  your  Lordships,  a  memorial  of  the 


THE  KING'S  PREROGATIVE  ABROAD.         199 

Trustees  for  establishing  the  Colony  of  Georgia,  with  direc- 
tions to  propose  a  draft  of  what  your  Lordships  should 
think  most  advisable  to  be  done,  in  order  to  obviate  the 
difficulties  therein  suggested,  a  copy  of  which  memorial 
your  Lordships  had  directed  to  be  enclosed,  for  our  opin- 
ion, in  what  manner  the  present  magistrates  and  other 
officers,  appointed  by  the  Trustees,  for  the  administra- 
tion of  justice  and  execution  of  government,  can,  upon 
the  surrender  of  the  Charter,  be  empowered  to  act  in 
their  respective  employments,  till  a  new  administration 
of  government  shall  be  settled.  We  have  taken  the 
said  memorial  into  consideration,  and  are  of  opinion, 
that  if  the  surrender  of  the  Charter,  by  the  Trustees, 
cannot  be  postponed,  and  the  present  government  there 
kept  up  till  a  new  method  of  admininistering  the  new 
govermnet  can  be  settled,  (which  seems  most  advisable,) 
the  proper  way  for  authorising  the  present  magistrates 
and  officers,  to  continue  in  the  exercise  of  their  respect- 
ive offices  in  the  mean  time,  will  be,  for  His  Majesty  to 
issue  a  proclamation  for  that  purpose,  under  the  Great 
Seal  of  Great  Britain,  to  be  published  in  Georgia. 

D.  RYDER. 
February  25,  1752.  W.  MURRAY. 

(5.)  Mr.  Fands  opinion,  on  the  King's  power  of  cal- 
ling an  Assembly,  in  New  York. 

To  "the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. . 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Hill,  I  have  considered  an  Act,  passed  in 
New  York,  entitled,  "  An  Act  for  the  frequent  elections 


200  OPINIONS  OP  EMINENT  LAWYERS. 

of  representatives,  to  serve  in  General  Assembly,  and 
for  the  frequent  calling  and  meeting  of  the  General  As- 
sembly, so  elected ;"  which  enacts,  that  the  General 
Assembly  of  this  colony  shall  be  held  once  a  year,  at 
least,  at  New  York,  unless  the  Governor,  with  the  advice 
of  a  majority  of  the  Council,  (which  is  to  consist  of  five,) 
shall,  under  the  seal  of  the  colony,  appoint  another  place. 
It  further  enacts,  that  in  six  months  after  the  dissolu- 
tion or  determination  of  every  Assembly,  new  writs  are 
to  be  issued,  for  electing  a  new  Assembly,  which  is  to 
be  held  once  a  year  ;  and  every  future  Assembly  is  to 
have  continuance  for  three  years  only,  to  be  accounted 
from  the  day  of  their  meeting  ;  and  there  is  a  clause  to 
determine  the  present  Assembly  on  the  15th  June  1739, 
unless  the  Governor,  for  the  time  being,  shall  dissolve 
it  sooner.  I  beg  leave  to  observe  to  your  Lordships, 
that  I  think  this  Act  is  a  very  high  infringement  upon 
the  prerogative  of  the  Crown  ;  for  it  takes  away  that 
undoubted  right,  which  the  Crown  has  always  exercised, 
of  calling  and  continuing  the  Assembly  of  the  colony, 
at  such  times  and  as  long  as  it  was  thought  necessary 
for  the  public  service,  and,  therefore,  when  such  a  mate- 
rial innovation  is  attempted,  there  ought  to  be  some 
very  strong  and  cogent  reasons  to  induce  your  Lord- 
ships to  consent  to  it.  For  my  part,  I  have  heard  none, 
and  therefore  am  humbly  of  opinion,  that  it  ought  to  be 
repealed. 

FRAN.  FANE". 
July  20th,  1738. 

-  (6.)  The  opinion  of  Chief-Justice  Morris,   in  New 
Jersey,  on  tJie  King's  power  of  mercy. 

The  Act  of  general  pardon,  now  under  our  considera- 


THE  KING'S  PREROGATIVE  ABROAD.         201 

tion,  I  think,  consists  of  t\vo  parts  ;  the  one  is  to  par- 
don all  those  persons,  who  have  been  concerned  in  or 
are  guilty  of  any  of  the  late  riots  or  insurrections  in  this 
Province  ;  the  other  is,  to  stop  and  suspend  all  process 
and  proceeding  against  those  persons  who  are  already 
indicted  for  high  treason,  or  such  as  may  hereafter  be 
accused  of  that  crime,  until  and  to  the  intent  His  Ma- 
jesty's pleasure  may  be  known. 

I  look  upon  this  to  be  a  matter  of  very  great  import- 
ance, perhaps  the  greatest  that  ever  yet  was  under 
the  consideration  of  the  Council  of  New  Jersey,  and, 
therefore,  wish  that  things  had  "been  so  managed  as  to 
have  brought  this  affair  before  us  earlier  in  the  sessions, 
that  we  might  have  had  the  greater  time  to  weigh, 
and  consider  what  was  proper  to  be  done  ;  however,  I 
shall  deliver  my  opinion  and  advice  upon  the  matter,  in 
as  clear  a  manner  as  the  shortness  of  the  time,  and  my 
abilities  will  permit. 

I  am  clearly  of  opinion,  that  by  His  Majesty's  com- 
mission to  His  Excellency,  under  the  Great  Seal  of  Great 
Britain,  His  Excellency  has  full  power  and  authority  to 
extend  His  Majesty's  mercy,  by  a  general  pardon,  to  all 
those  that  have  been  concerned  in  the  late  riots  and  in- 
surrections within  this  colony ;  provided,  the  crimes  of 
which  they  stand  accused,  do  not  amount  to  high  trea- 
son or  murder ;  these  being  the  only  crimes  excepted  in 
that  clause  of  the  royal  commission  which  gives  power 
to  extend  His  Majesty's  mercy. 

But  I  do  not  think  it,  by  any  means,  prudent  or  advi- 
sable, in  His  Excellency,  to  use  the  powers  so  given,  in 
the  manner  proposed  by  the  general  pardon  before  us, 
till  the  Legislature  now  sitting  have  made  provision 
effectually  to  strengthen  the  hands  of  His  Majesty's  gov- 
27 


202  OPINIONS    OP    EMINENT    LAWYERS. 

eminent,  so  as  to  enable  them  to  protect  the  persons 
and  estates  of  the  people  of  the  Province,  and  to  carry 
into  execution  the  laws  of  the  land.  When  that  is 
done,  in  a  manner  satisfactory  to  the  government,  then, 
and  not  before,  I  humbly  conceive  it  will  be  prudent 
and  advisable  in  His  Excellency,  to  grant  and  extend 
His  Majesty's  gracious  mercy  to  the  persons  concerned 
in  the  said  late  riots,  which  will  then,  in  my  opinion, 
tend  very  much  to  restoring  the  peace  of  the  Province, 
as  most  of  the  persons  concerned  are  an  ignorant  peo- 
ple, encouraged  and  set  on  by  some  artful  and  designing 
men.  i>vv 

As  to  the  second  part  of  the  Act  of  general  pardon,  I 
must  declare  it  as  my  judgment  and  opinion,  that,  nei- 
ther by  His  Majesty's  commission,  nor  by  the  article  of 
the  royal  instructions  now  communicated,  has  His  Ex- 
cellency any  power  or  authority  to  suspend  the  process, 
or  stop  the  proceedings  in  cases  of  high  Reason.  The 
powers  of  pardoning  given  by  the  commission,  are  full  as 
to  all  crimes  but  treason  and  murder,  which  being  express- 
ly reserved  and  excepted,  no  construction,  in  my  opinion, 
can  possibly  extend  the  words  so  as  to  give  power  to  sus- 
pend or  stop  the  proceedings  in  those  cases,  which  will, 
in  effect,  be  pardoning,  as  the  parties  are  (and  it  is  in- 
tended shall  remain,)  at  full  liberty,  and  may  remove 
themselves,  and  their  effects  to  another  part  of  the 
world,  long  before  His  Majesty's  pleasure  can  be  known. 

As  to  the  construction  now  communicated,  it  is  cer- 
tainly a  very  good  one,  and,  among  many  others,  shews 
His  Majesty's  great  care  and  paternal  affection  for  these, 
his  remote  dominions ;  but  I  think  there  is  nothing  con- 
tained in  it,  that  can  be  construed  to  give  a  power  to  do 
what  is  now  proposed. 


THE    KING'S    PREROGATIVE    ABROAD.  203 

The  material  words  are,  "  and  if  anything  shall  hap- 
pen, that  may  be  of  advantage  and  security  to  our  said 
Province,  which  is  not  herein,  or  by  our  commission  to 
you,  provided  for,  we  do  hereby  allow  you,  with  the  ad- 
vice and  consent  of  our  Council,  to  take  order,  for  the 
present,  therein,"  &c. 

This  instruction  seems  to  me  justly  calculated  to  em- 
power the  Governor  to  act  for  the  advantage  and  secu- 
rity of  the  Province,  in  extraordinary  cases,  wherein  the 
commission  and  instruction  are  silent ;  but,  in  my  humble 
opinion,  was  never  intended,  nor  can  it  be  consfrued,  to 
extend  to  things  expressly  provided  for  by  the  commis- 
sion, which  the  powers  of  pardoning  and  reprieving  are, 
so  far  as  His  Majesty  intended  they  should  be  used ;  and 
as  the  power  of  pardoning  treason  is  there  expressly 
reserved  and  excepted,  I  cannot  think  the  general  words 
in  the  instruction,  were  intended  to  give  a  power  con- 
tradictory to  the  commission.  And  I  conceive,  that  as 
the  King's  instructions  receive  their  greatest  force  from 
the  commission  under  the  Great  Seal,  so  the  granting 
the  suspension  proposed  under  the  powers  given  by  that 
instruction,  will  be  doing  an  act,  by  virtue  of  the  royal 
commission,  which  that  very  commission  prohibits  and 
excepts  in  express  words. 

Having  declared  my  sentiments,  that  His  Excellency 
has  no  power,  by  his  commission  or  instructions,  to  grant 
the  suspension  proposed,  it  will  be  needless  to  enter  far 
into  the  consideration  of  the  legality  of  tying  up  the 
hands  of  the  Courts  of  Law,  in  such  cases,  which  seems 
to  me  to  be  stopping  the  ordinary  course  of  the  laws, 
and  exercising  little  less  than  a  dispensing  power,  not 
warranted  by  the  Constitution. 


204  OPINIONS  OP  EMINENT  LAWYERS. 

• 

How  far  it  will  be  prudent  and  advisable,  in  His  Ex- 
cellency, to  grant  the  suspension  proposed,  if  lie  had 
power,  is  next  to  be  considered,  and  greatly  depends 
upon  the  state  and  circumstances  of  the  Province,  which 
is  very  well  known  to  every  one  here  present,  and 
therefore,  need  not  be  mentioned.  '  But  certain  it  is 
that  things  would  never  have  gone  the  lengths  they 
had  done,  if  the  Legislature  had  interposed  when  this 
rebellion  was  young,  and  before  it  had  come  to  its  matu- 
rity, nor  need  it  continue  longer,  if  they  will  exert  them- 
selves, ki  support  of  His  Majesty's  authority,  and  the 
laws  of  the  land. 

In  my  humble  opinion,  the  Province  is  not  in  such 
circumstances  as  to  make  it  prudent  or  advisable  in 
the  government  to  stretch  their  power  in  favor  of  a  few 
people,  who  have  thrown  off  their  allegiance.  There  is 
power  and  strength  enough  in  the  Province,  to  put  the 
laws  in  execution ;  His  Excellency,  with  the  Council 
and  Assembly,  can,  if  they  will,  presently  put  a  stop  to 
those  disorders,  and  were  they  once  inclined,  these  dar- 
ing people  would  presently  sneak  into  their  hiding 
places,  and  not  venture  to  shew  themselves ,-^n  opposi- 
tion to  the  government.  But  while  V)  ^want  inclina- 
tion, and  while  these  people  know  what  we  do,  all  the 
mild  measures  proposed  will  be  ineffectual,  and  only  tend 
to  bring  the  government  into  greater  contempt. 

Had  these  daring  disturbers  not  been  countenanced 
by  some  men  of  note,  had  they  not  depended  upon  the 
support  and  protection  of  men  much  above  themselves, 
they  never  would  have  ventured,  thus,  to  have  flown  in 
the  face  of  His  Majesty's  Government,  and  to  have 
thrown  off  their  allegiance.  Had  they  labored  under 


THE  KING'S  PREROGATIVE  ABROAD.  205 

» 

any  injustice  or  oppression,  they  have  had  full  liberty 
and  have  laid  their  complaints  before  the  Assembly,  too 
many  of  whom  want  not  inclinations  in  their  favor  ; 
and  as  they  have  been  fully  heard,  and  no  one  instance 
of  oppression  or  injustice  made  out,  even  to  the  satis- 
faction of  the  Assembly,  it  must  be  presumed  their 
complaints  are  only  clamor,  designed  to  draw  in  weak 
and  unwary  people,  to  join  them  in  their  unlawful  prac- 
tices. 

R.  H.  MORRIS. 


How  far  Colonists  carry  English  Laws. 


III.  How  far  the  King's  subjects,  who  emigrate, 
carry  with  them  the  Law  of  England :  First,  The 
Common  Law ;  Second,  The  Statute  Law. 

First.  As  to  the  Common  Law. 

(1.)  Mr.  West s  opinion  on  this  subject  in  1720. 

The  Common  Law  of  England,  is  the  Common  Law 
of  the  Plantations,  and  all  statutes  in  affirmance  of  the 
Common  Law  passed  in  England,  antecedent  to  the  set- 
tlement of  a  colony,  are  in  force  in  that  colony,  unless 
there  is  some  private  Act  to  the  contrary  ;  though  no 
statutes  made  since  those  settlements,  are  there  in  force, 
unless  the  colonies  are  particularly  mentioned.  Let  an 
Englishman  go  where  he  will,  he  carries  as  much  of 
law  and  liberty  with  him,  as  the  nature  of  things  will 
bear. 

(2.)  Ihe  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral,  Pratt  and  Yorke,  that  tlw  King's  subjects  carry 
with  them  the  Common  Law,  wherever  they  may  form 
settlements. 

In  respect  to  such  places  as  have  been  or  shall  be  ac- 
quired by  treaty  or  grant,  from  any  of  the  Indian 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.     207 

Princes  or  governments,  your  Majesty's  letters  patent 
are  not  necessary ;  the  property  of  the  soil  vesting  in  the 
grantees  by  the  Indian  grants,  subject  only  to  your  Majes- 
ty's right  of  sovereignty  over  the  settlements,  as  Eng- 
lish settlements,  and  over  the  inhabitants,  as  English 
subjects,  who  carry  with  them  your  Majesty's  laws 
wherever  they  form  colonies,  and  receive  your  Majesty's 
protection,  by  virtue  of  your  royal  Charters. 

C.  PRATT. 

C.  YORKE. 

(3.)  Mr.  Fands  opinion  how  far  subjects  can  be  de- 
tained in  custody,  on  a  charge  of  Piracy. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  of  the  3d  of  May  last, 
whereby  your  Lordships  are  .pleased  to  desire  my  opin- 
ion, in  point  of  law,  how  far  Mr.  Worsley,  Governor  of 
Barbadoes,  can  be  justified  in  detaining  two  persons  in 
custody  upon  that  island,  upon  suspicion  of  piracy,  sup- 
posed to  be  committed  on  the  Portuguese  factory,  at 
Cape  Lopez.  I  have  considered  of  the  matters  so  re- 
ferred, and  am  humbly  of  opinion,  that  Mr.  Worsley  can- 
not justify  the  detaining  the  persons  any  longer  in  cus- 
tody, upon  suspicion,  without  bringing  them  to  a  trial, 
and  which,  he  says  in  his  letter  to  your  Lordships,  he 
declines  doing,  because  he  is  apprehensive  that  for 
want  of  evidence  they  will  be  acquitted ;  therefore,  I 
think  they  ought  to  be  released  ;  but  it  may  be  proper 
for  Mr.  Worsley,  if  the  suspicions  are  very  strong  against 
them,  not  to  discharge  them  till  such  time  as  they  have 


208  OPINIONS  OF  EMINENT  LAWYERS. 

given  security  for  their  appearance,  to  answer  any  mat- 
ters that  may  hereafter,  in  a  reasonable  time,  be  charged 

upon  them. 

FRAN.  FANE. 
July  14,  1726. 

Second.  As  to  the  extension  of  the  Statute^Law. 

(1.)  The  Attorney-General  Yorlce's  opinion  on  this 
subject,  in  1729. 

Qu&re. — Whether  such  general  Statutes  of  England  as 
have  been  made  since  the  date  of  the  Charter  of  Mary- 
land, and  wherein  no  mention  is  made  of  the  planta- 
tions, and  not  restrained  by  words  of  local  limitation, 
are,  or  are  not,  in  force,  without  being  introduced  there 
by  a  particular  Act  of  their  own  ? 

I  am  of  opinion  that  such  general  Statutes  as  have 
been  made  since  the  settlement  of  Maryland,  and  are 
not,  by  express  words,  located  either  to  the  plantations 
in  general,  or  to  the  Province  in  particular,  are  not  in 
force  there,  unless  they  have  been  introduced  and  de- 
clared to  be  laws,  by  some  Acts  of  Assembly  of  the  Pro- 
vince, or  have  been  received  there  by  long  uninterrupted 
usage  or  practice,  which  may  import  a  tacit  consent  of 
the  Lord  Proprietor  and  the  people  of  the  colony,  that 
they  should  have  the  force  of  a  law  there. 

P.  YORKE. 

By  Stat.  25,  Geo.  II.  ch.  6.  s.  10,  it  appears,  that  the 
Legislature  considered  usage  as  sufficient  to  have  ex- 
tended an  Act  of  Parliament  to  the  colonies. 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  209 

(2.)  The  opinion  of  the  Attorney  and  Solicitor,  Hen- 
ley and  Yorke,  that  the  subjects  emigrating,  do  carry  with 
them  the  Statitte  Law,  in  1757. 

My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Pownal,  by  letter  dated  April  1st,  1757, 
accompanied  with  an  enclosed  letter  and  papers,  which 
he  had  received  from  Jonathan  Belcher,  Esq.,  Chief- Jus- 
tice of  His  Majesty's  colony  of  Nova  Scotia,  relating  to 
the  case  of  two  persons  convicted  in  the  Courts  there, 
of  counterfeiting  and  uttering  Spanish  dollars  and  pista- 
reens,  and  requiring  our  opinion,  in  point  of  law,  there- 
on ;  we  have  taken  the  said  letters  and  papers  into  our 
consideration,  and  find  that  the  question  upon  which  the 
case  of  those  two  persons  convicted  of  high  treason  de- 
pends, is  this  :  Whether  the  Act  of  Parliament,  1st  Mar. 
ch.  6.,  entitled  an  Act  that  the  counterfeiting  of  strange 
coins  (being  current  within  this  realm),  the  Queen's  sign 
manual  or  privy  seal,  to  be  adjudged  treason,  extends  to 
Nova  Scotia,  and  is  in  force  there,  with  respect  to  the 
counterfeiting  Spanish  dollars  and  pistareens  in  the  said 
Province  1 

And  we  are  of  opinion,  first,  that  it  doth  not ;  for  that 
the  Act  is  expressly  restrained  to  the  counterfeiting  of 
foreign  coin,  current  within  this  realm,  of  which  Nova 
Scotia  is  no  part. 

Secondly,  we  are  of  opinion,  that  the  proposition 
adopted  by  the  Judges  there,  that  the  inhabitants  of 
the  colonies  carry  with  them .  the  Statute  Laws  of  this 
realm,  is  not  true,  as  a  general  proposition,  but  depends 
upon  circumstances  :  the  effect  of  their  Charter ;  usage ; 
and  acts  of  their  Legislature;  and  it  would  be  both 
28 


210  OPINIONS  OF  EMINENT  LAWYERS. 

inconvenient  and  dangerous,  to  take  it  in  so  large  an 
extent. 

And  thirdly,  we  are  of  opinion,  that  the  offence  can 
only  be  considered  as  a  high  misdemeanor,  unless  there 
are  any  provisions  in  any  Charter  granted  to  that  Pro- 
vince, which  make  it  a  greater  offence,  to  which  we  are 

entirely  strangers. 

H.  HENLEY. 

May  18,  1757.  C.  YORKE. 

(3.)  The  opinion  of  the  Advocate,  the  Attorney  and 
Solicitor,  Hay,  Yorke  and  Noi*ton  on  the  same  subject, 
in  1762. 

Qucere.— Does  the  Act  of  the  28th  Hen.  VIII.  ch.  .15., 
entitled  "For  Pirates,"  (being  passed  before  the  establish- 
ment of  any  of  the  British  Colonies)  extend  to  the  said 
colonies ;  and  if  it  does,  how  are  the  regulations  there- 
in set  down,  to  be  executed? 

Answer. — We  are  of  opinion,  that  the  stat.  28  Hen. 
VIII.  does  extend  to  the  case  of  murder,  committed 
any  where  on  the  high  seas  ;  and,  consequently,  that  a 
commission  might  issue  on  the  present  case,  into  any 
county  within  the  realm  of  England,  to  try  the  offend- 
ers who  might  be  brought  over  for  that  purpose,  and  the 
witnesses  examined,  and  jury  sworn  before  such  Com- 
missioners, unless  that  mode  of  trial  should  be  deemed 
inconvenient. 

Quaere. — Does  the  Act  of  the  llth  and  12th  Will. 
III.,  ch.  7.,  entitled  "An  Act  for  the  effectual  suppression 
of  Piracy,"  or  the  7th  sec.  of  Geo.  I.,  ch.  11.,  entitled 
"An  Act  further  preventing  burglary,"  contain  sufficient 
authority  for  the  trial  and  punishment  of  persons  upon 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  211 

the  sea  or  waters,  within  the  Admiralty  jurisdiction  in 
the  plantations ') 

Answer. — We  are  of  opinion,  that  neither  of  the  Acts 
of  Parliament  mentioned  in  this  quaere,  were  intended 
to  affect  the  case  of  murders ;  they  relate  merely  to  such 
felonies  as  are  equal  or  inferior  to  the  species  particu- 
larly expressed. 

G.  HAY, 

March  4,  1762.  C.  YORKE. 

F.  NORTON. 

(4.)  The  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, De  Grey  and  Willes,  on  tlie  extension  of  Acts  of 
Parliament  to  the  Colonies,  when   they  are  'mentioned 
generally,  as  dominions  of  the  Crown,  in  1767. 
May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified  to 
us  by  Mr.  Pownall's  letter  of  the  12th  of  June,  that  we 
would  take  into  our  consideration  an  Act  of  Parliament, 
passed  in  the  12th  of  Qneen  Ann.,  stat.  2.  ch.  18.,  enti- 
tled "An  Act  for  the  preserving  of  all  such  ships  and 
goods,  which  shall  happen  to  be  forced  on  shore  upon 
the  coasts  of  this  kingdom  or  any  other  of  Her  Majesty's 
dominions ;"  also,  one  other  Act  of  Parliament  passed  the 
4th  of  Geo.  I.  ch.  12,  entitled  "an  Act  for  enforcing  and 
making  perpetual  an  Act  of  the  12th  year  of  Her  late  Ma- 
jesty, entitled  'an  Act  for  preserving  all  such  ships  and 
goods  thereof,  as  shall  happen  to  be  forced  on  shore  or 
stranded  upon  the  coasts  of  this  kingdom,  or  any  other  of 
His  Majesty's  dominions,'  "  and  for  inflicting  the  punish- 
ment of  death  on  such  as  shall  wilfully  burn  and  de- 


212  OPINIONS  OF  EMINENT  LAWYERS. 

stroy  ships ;  and  that  we  would  give  our  opinion, 
whether  the  said  Acts  do  extend  to,  and  are  in  force  in 
His  Majesty's  colonies  and  plantations,  in  America ;  we 
have  taken  the  same  into  our  consideration,  and  are  of 
opinion,  that  as  the  title  of  the  Act  of  the  12th  of  Ann! 
stat  2.  ch.  13,  expressly  imports  to  be  "  an  Act  for  pre- 
serving ships  and  goods  forced  on  shore,  or  stranded  up- 
on the  coasts  of  this  kingdom  or  any  other  of  Her  Majes- 
ty's dominions,"  and  the  enacting  part  has  words  extend- 
ing to  Her  Majesty's  dominions  in  general,  the  said  Act  of 
the  12th  of  Ann.  extends  to  and  is  in  force  in  His  Ma- 
jesty's colonies  and  plantations  in  America,  notwith- 
standing the  special  promulgation  of  the  law ;  and 
some  other  provisions  in  it  are  applicable  only  to  this 
kingdom. 

We  are  likewise  of  opinion,  that  so  much  of  the  Act 
of  4th  Geo.  I.  ch.  12,  as  declares  the  12th  of  Ann.  to  be 
perpetual,  extends  to  America.  But  the  third  clause  of 
that  Act,  which  introduces  a  new  crime,  by  a  provision 
altogether  independent  of  the  former  part  of  the  Act, 
and  made  to  render  an  Act  of  the  first  of  Ann.  more 
effectual,  we  are  inclined  to  think,  does  not  extend  to 
His  Majesty's  colonies  and  plantations  in  America,  that 
clause  being  expressed  in  general  terms,  without  any 
reference  to  the  colonies;  and  the  llth  of  Geo.  I.  ch. 
29.,  s.  7.,  which  directs  the  mode  of  prosecution  of  those 
offences,  when  committed  within  the  body  of  any  coun- 
ty of  this  realm,  or  upon  the  high  seas,  making  no  men- 
tion of  the  manner  of  trial,  if  such  offences  should  be 
committed  in  any  of  His  Majesty's  plantations  or  colo- 
nies in  America. 

W.  DE  GREY. 
June  25,  1767.  E.  WILLES. 


HOW  PAR  COLONISTS  CARRY  ENGLISH  LAWS.  213 

(5.)  The  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Raymond  and  Yorlte,  how  far  the  Statute  of  Mo- 
nopolies extends  to  the  Colonies. 

To  the  Right  Honorable,  the  Lords   Commissioners  for 

Trade  and  Plantations. 

In  obedience  to  your  Lordships'  commands  signified 
to  us  by  Mr.  Popple,  by  his  letter  dated  the  24th  of 
June  last,  whereby  he  acquaints  us,  that  His  Majesty, 
having  been  pleased  to  refer  to  your  Lordships  the  peti- 
tion of  Mr.  Shard  and  others,  for  a  patent  for  the  sole 
curing  of  sturgeon  in  America,-  and  importing  the  same 
into  this  kingdom ;  and  your  Lordships,  being  desirous 
to  have  the  same  effectually  carried  on  without  being 
made  a  stock-jobbing  business,  were  pleased  to  require 
our  opinion,  in  what  manner  a  patent  may  be  granted 
them.  'To  answer  what  your  Lordships  propose,  in  that 
point,  we  have  considered  of  the  matter  thereby  referred 
to  us,  and  are  of  opinion,  that  if  such  a  patent  as  is  prayed 
by  the  petitioner,  might  be  granted  by  law,  the  making 
it  a  stock-jobbing  business  may  be  prevented,  by  insert- 
ing a  clause  therein  for  that  purpose ;  but,  upon  the  case 
as  stated  to  us,  we  apprehend  that  the  art  pretended  to 
by  the  petitioner,  does  not  appear  to  be  a  new  inven- 
tion, of  which  the  sole  use  is  grantable  ;  besides  that, 
we  are  very  doubtful  upon  consideration  of  the  Statute 
of  the  21st  of  Jac.  I.,  c.  3,  whether  the  prerogative  of  the 
Crown,  for  making  grants  of  this  nature,  exclusive  of 
other  persons,  extends  to  the  plantations. 

ROBT.  RAYMOND. 

July  18,  1720.  PHIL.  YORKE. 


214  OPINIONS  OF  EMINENT  LAWYERS. 

(6.)  The  opinion  of  the  Attorney-General  Yorlce^  in 
1727,  how  far  Statutes  extend  to  the  Isle  of  Man. 

I  am  of  opinion,  that  no  officer  of  the  Customs  can, 
by  virtue  of  any  deputation  from  the  Commissioners  of 
the  Customs  in  Great  Britain,  make  a  seizure  in  the  Isle 
of  Man  ;  because,  as  I  take  it,  their  commission  doth  not 
extend  to  that  Island  ;  but  I  conceive  that  the  clause  in 
the  Act  7,  Geo.  I.,  upon  which  this  question  arises,  gives 
power  to  any  person,  whatsoever,  to  seize  goods  imported 
into  the  Isle  of.  Man,  contrary  to  the  provision  of  that 
Act ;  and  that  those  general  words  are  not  restrained 
as  they  are  in  England,  by  the  operation  of  the  Act  of 
frauds,  14  Car.  II.,  c.  11.,  s.  15,  which  directs  seizures  to 
be  made  by  the  officers  of  the  Customs  only,  for  that 
clause  extends  only  to  England,  Wales  and  •  Berwick- 
upon-Tweed  ;  therefore,  I  think  officers,  so  deputed,  may 
make  seizures  in  the  Isle  of  Man,  for  importations  con- 
trary to  the  Act  7°  Georgii,  and  prosecute  the  same  to 
condemnation,  in  the  proper  Court  there,  but  this  must 
be  done,  not  by  virtue  of  their  deputations,  but  as  com- 
mon persons,  \>y  force  of  the  Act  of  Parliament. 

P.  YORKE. 

August  23,  1727. 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  215 

(7.)  The  opinion  of  the  Attorney  and  ftolicitor-G-en- 
eral,  YorTee  and  Wearg:  on  the  extension  of  the  Laivs  of 
England  to  the  Colonies,  and  on,  other  analagous  topics 
of  Law* 

To  the  Right  Honorable  the   Lords   Commissioners    of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified  to 
us  by  Mr.  Popple,  by  his  letter  dated  the  4th  of  February 
last,  transmitting  to  us  the  annexed  copy  of  an  order  of 
their  Excellencies,  the  late  Lords  Justices,  made  in  Coun- 
cil, and  requiring  our  opinion  upon  the  matters  therein 
referred  to  your  Lordships,  we  have  considered  the  said 
order,  which  contains  in  substance,  that  your  Lord- 
ships should  consider  what  laws,  now  in  force  in  the 
island  Of  Jamaica,  will  expire  the  1st  of  October,  1724, 
and  what  laws  will  remain  in  force  after  that  time  ;  and 
that  your  Lordships  should  also  consider  upon  what 
foot  the  government  of  that  island  will  stand  after 
the  said  1st  of  October,  1724,  and  under  what  circum- 
stances the  inhabitants  thereof  will  remain,  in  rela- 
tion to  their  dependence  upon  the  authority  of  the 
Crown  ;  and  that  your  Lordships  would  take  the  opinion 
of  His  Majesty's  Attorney  and  Solicitor  General  there- 
upon, and  report  a  full  state  thereof  to  their  Excellen- 
cies in  Council.  'uf  • 

And  we  humbly  certify  your  Lordships,  that  the  sev- 
eral points  mentioned  in  the  said  order,  depending  upon 

*  By  a  clause  in  the  Mutiny  Act,  6  G-eo.  III.  crimes  committed  in 
the  upper  country  of  Canada  were  made  triable  in  the  Canadian  Courts 
of  Justice;  in  1772,  one  Du'-,  who  had  murdered  his  master  at  Detroit, 
was  thus  tried,  found  guilty  and  executed. 


216  OPINIONS    OP  EMINENT   LAWYERS. 

the  Constitution  of  the  Island  of  Jamaica,  and  the  sev- 
eral alterations  it  has  undergone,  since  the  conquest 
thereof  from  the  Crown  of  Spain,  in  the  year  1655,  we 
have  found  it  necessary  to  inquire  into  a  great  variety 
of  facts,  which  could  only  appear  by  the  books  and  me- 
morials preserved  in  your  Lordships'  office  ;  and  in  or- 
der to  our  information  therein,  your  Lordships'  Secreta- 
ry did,  at  our  request,  lay  before  us  several  original 
books,  and  copies  and  extracts  out  of  other  books  and 
papers,  by  the  assistance  whereof  we  have  endeavored 
to  form  some  judgment  upon  the  subject  matter  of  the 
said  reference  ;  but  by  reason  of  the  many  defects  which 
were  in  the  first  settlement  of  this  Colony,  and  the  con- 
tentions which  have  been  kept  on  foot  ever  since,  be- 
tween the  respective  Governors  and  Assemblies  of  the 
people,  we  find  many  things,  of  no  little  consequence, 
left  in  great  uncertainty,  at  this  day ;  and  in  several  in- 
stances, it  is  very  difficult  to  learn  what  was  the  real 
transaction,  by  reason  of  the  imperfect  accounts  which 
have  been  sometimes  transmitted  hither. 

The  points  specified  in  the  said  order  of  the  late  Lord 
Justices,  whereupon  your  Lordships  have  been  pleased 
to  require  our  opinion,  are  three,  viz : 

What  laws,  now  in  force  in  Jamaica,  will  expire  on 
the  1st  day  of  October,  1724  ? 

What  laws  will  remain  in  force  after  that  time  ? 

Upon  what  foot  the  government  of  that  Island  will 
continue,  after  that  time,  particularly  in  relation  to  its 
dependence  upon  the  authority  of  the  Crown  of  Great 
Britain? 

As  to  the  laws  of  the  Island,  they  appear  to  have 
been  made  in  different  manners,  and  under  different 


HOW  FAR  COLONISTS  CARRY"  ENGLISH  LAWS.  217 

powers,  at  several  periods  of  time  ;  and  because  in  con- 
sidering them,  some  facts  will  occur,  which  may  be 
found  to  be  material,  with  relation  to  the  third  point  re- 
ferred to  us,  we  beg  leave  to  state  the  case,  as  to  this 
head,  more  fully  to  your  Lordships. 

The  first  commission  of  a  Governor  of  this  Island, 
which  has  been  laid  before  us,  was  granted  to  Colonel 
Edward  D'Oiley,  bearing  date  the  8th  day  of  February, 
1660,  whereby  he  was  empowered  to  do  and  execute  all 
things  appertaining  to  the  office  of  Governor,  which 
might  tend  to  the  defence  and  good  government  of  the 
Island,  according  to  such  powers  as  were  given  him  by 
his  commission  and  instructions,  and  according  to  such 
good  and  reasonable  customs  and  constitutions  as  were 
exercised  and  settled  in  His  Majesty's  other  Plantations, 
or  such  as  should,  upon  mature  advice  and  consideration, 
be  held  necessary  and  proper,  for  the  good  government 
and  security  of  the  Island,  provided  they  were  not  re- 
pugnant to  the  laws  of  England ;  but  no  reservation  is 
made,  or  direction  given,  for  the  transmitting  any  Acts, 
or  orders,  to  be  made  by  him  in  the  Island,  to  be  con- 
firmed by  the  King. 

For  the  better  administration  of  justice,  and  manage- 
ment of  affairs,  he  was  directed  to  take  to  him  a  Council 
of  twelve  persons,  to  consist  of  the  Secretary  of  the  Is- 
land, and  eleven  persons  to  be  elected  indifferently  by 
as  many  of  the  officers  of  the  army,  planters,  and  inhabi- 
tants, as  by  his  best  and  most  equal  contrivance  might 
be  admitted  thereunto. 

With  the  advice  of  this  Council,  or  any  five  of  them, 
the  Governor  was  empowered  to  erect  and  constitute 
Civil  Judicatures,  with  power  to  administer  an  oath,  and 

to  do  and  execute  all  and  every  such  further  Act  and 
29 


218  OPINIONS  OF  EMINENT  LAWYERS. 

Acts  as  might  conduce  to  the  security  of  the  Island,  and 
the  people  thereof,  and  the  honor  of  the  Crown. 

By  virtue  of  this  commission  and  instructions,  several 
Courts  of  Justice  were  erected,  and  many  orders  made 
by  the  Governor  and  Council,  the  style  whereof  is,  be  it 
enacted  and  ordained  by  the  Governor  and  Council,  con- 
cluding, given  under  my  hand  on  such  a  day,  signed  by 
the  Governor ;  and  several  of  them  are  mentioned  to 
have  been  proclaimed  in  the  Island. 

Amongst  these  is  an  Act,  or  order,  for  laying  an  im- 
post upon  strong  liquors  imported,  viz ;  upon  every  tun 
of  Spanish  or  French  wine,  four  pounds  sterling ;  every 
gallon  of  brandy,  or  spirits,  sixpence  ;  and  every  tun  of 
beer,  twenty  shillings,  and  after  that  rate  for  a  smal- 
ler quantity.  Remedies  are  thereby  provided  for  the 
levying  and  recovering  this  duty,  and  penalties  inflicted 
on  the  persons  committing  frauds  therein. 

There  is  also  another  Act,  or  order,  for  laying  one 
shilling  per  ton  upon  all  ships  trading  to  this  Island. 

Many  other  ordinances  appear  to  have  been  made  in 
the  same  manner,  for  the  better  government  of  the  Is- 
land, for  regulating  trade,  and  redressing  public  mis- 
chiefs ;  and  some  particular  Acts  in  the  Barbadoes'  book 
(as  it  is  there  expressed)  are  ordered  to  be  in  force  in 
Jamaica. 

In  many  of  these  ordinances,  penalties  and  forfeitures 
to  the  King  are  inflicted  ;  justices  of  the  peace  are  spo- 
ken of  as  magistrates  then  in  being,  though  we  cannot 
find  any  general  constitution  of  justices  of  the  peace, 
only  an  order  of  the  Governor  and  Council  to  be  justices 
of  the  peace  throughout  the  Island,  and  some  others  ap- 
pointing particular  persons  justices  of  the  peace. 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.     219 

On  the  2d  day  of  July,  1661,  the  Lord  Windsor  was 
appointed  Governor,  in  the  room  of  D'Oiley.  By  Ms 
commission  and  instructions,  power  was  given  him  to  ap- 
point and  constitute  a  Council,  to  consist  of  twelve  per- 
sons, by  the  advice  of  whom,  or  any  five  of  them,  he  was 
authorized  to  erect  Civil  Judicatures,  and  to  proceed  in 
all  other  acts  of  Council  and  Government. 

And  in  his  instructions,  to  this  clause,  you  shall  have 
'power,  with  the  advice  of  the  Council,  to  call  Assemblies 
together,  according  to  the  custom  of  our  Plantations,  to 
make  laws,  and,  upon  imminent  necessities,  to  levy  mon- 
ies, as  shall  be  most  conducible  to  the  honor  and  advan- 
tage of  our  Crown,  and  the  good  and  welfare  of  our  sub- 
jects :  provided  that  they  be  not  repugnant  to  any  of  our 
laws  of  England,  and  that  such  laws  shall  be  in  force  for 
two  years,  and  no  longer,  unless  they  shall  be  approved 
and  confirmed  by  us. 

This  is  the  first~mention  that  is  made  of  an  Assem- 
bly ;  but,  notwithstanding  that,  it  appears  that  Lord 
Windsor,  during  his  stay  in  Jamaica,  which  was  but 
short,  made  three  ordinances,  with  the  advice  of  the 
Council,  as  much  in  the  form  of  laws  as  those  made  by 
Colonel  D'Oiley. 

The  like  was  done  by  Sir  Charles  Littleton,  who  was 
appointed  Deputy-Governor  under  His  Lordship,  and 
more  particularly  one  ordinance,  which  is  entitled^ah 
additional  or  supplemental  Act,  to  an  A<ct  formerly  m'ade 
by  the  Governor  and  Council;  &#  t&e'  raising  'a?  public 
revenue  out  of  strong  Iic[uo1rs  imported'  to  tftis  Island. 
By  this  ordinance,  not  only  new  methods  of  levying  and 
collecting  the  former  duties  are  provided,  but  also  the 


220  OPINIONS    OF  EMINENT  LAWYERS. 

duty  of  four  pounds  sterling,  per  tun,  is  imposed  upon 
all  Madeira  and  Fayal  wines,  as  was,  by  the  former  Act, 
upon  Spanish  and  French  wines. 

But,  on  the  23d  day  of  October,  1663,  Sir  Charles 
Littleton,  with  the  advice  of  the  Council,  made  an  order 
for  calling  an  Assembly,  to  consist  of  thirty  persons,  be- 
ing freeholders,  to  be  fairly  and  indifferently  chosen  in 
the  several  quarters  of  the  Island. 

In  the  same  book,  in  which  these  Acts  or  orders  are. 
contained,  and  immediately  following  them,  is  a  trans- 
cript of  a  body  of  Acts  of  Assembly,  without  any  title, 
save  the  word  Jamaica,  and  the  letters  S.  C.  L.  at  the 
top  of  the  first  page,  which  we  apprehend  to  stand  for 
Sir  Charles  Littleton :  these,  we  conceive,  to  be  the  Acts 
of  this  first  Assembly. 

Amongst  these  acts  there  is  a  very  remarkable  one, 
entitled,  "An  Act  for  confirming  divers  Acts  of  the 
Governor  and  Council  of  this  Island,  and  repealing  all 
other  Acts  and  ordinances,"  in  which  some  particular 
Acts  or  orders,  are  expressly  confirmed  and  ordained  to 
be  of  as  full  force  as  if  they  had  been  enacted  by  the 
Governor  and  Council,  with  the  consent  of  the  Assem- 
bly ;  all  other  Acts  and  ordinances  made  by  the  Govern- 
ors and  Councils  only  are  declared  to  be  utterly  void. 
But  a  clause  is  inserted  for  indemnifying  all  officers  and 
other  persons  who  acted  under  them,  for  Acts  done  be- 
fore that  time. 

We  have  been  the  more  particular  in  stating  these 
facts,  because  from  them  it  appears,  that  it  was  insisted 
upon  by  the  people  of  the  Island,  at  that  time,  that  the 
Acts,  or  ordinances,  of  the  nature  of  the  laws,  which 
had  been  formerly  made  by  the  Governors  and  Council 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  221 

only,  were  not  binding  laws,  but  void  in  themselves,  for 
want  of  the  consent  of  the  representatives  of  the  people, 
met  in  an  Assembly. 

Agreeably  to  this  opinion,  a  new  Act  was  made  for 
establishing  Courts  of  Judicature,  and  also  a  new  reve- 
nue Act,  whereby  duties  were  laid  upon  strong  liquors 
imported,  varying  only  in  one  or  two  particulars  from 
the  former  duties. 

But  though  these  Acts  passed  in  the  Island,  they  do 
not  appear  to  have  been  approved  by  King  Charles  the 
Second,  and,  consequently,  could  continue  in  force  only 
for  two  years. 

The  15th  day  of  February,  1663,  Sir  Thomas  Mody- 
ford  was  appointed  Governor;  tby  his  commission  ex- 
press power  was  given  to  him  to  choose  a  Council  of 
twelve  persons,  and  with  the  advice  of  them,  or  any 
five,  or  more  of  them,  to  make  reasonable  laws,  constitu- 
tions, and  forms  of  government,  magistrac}^  and  execution 
of  Justice,  and  to  erect  Courts  of  Judicature  :  provided 
the  laws  to  be  made  were  as  near  as  might  be  to  the 
laws  of  England,  and  did  not  extend  to  take  away  any 
right  of  any  person  in  their  freehold  goods,  or  chattels, 
or  to  the  loss  of  member,  and  so  as  they  were  transmit- 
ted to  His  Majesty  to  be  approved. 

Power  was  also  given  to  the  Governor,  with  the  ad- 
vice of  the  Council,  to  establish  and  frame  in  such  a  way 
and  manner,  as  should  be  thought  fit  for  the  calling  of 
General  Assemblies  of  freeholders  and  planters,  accord- 
ing to  the  usage  and  custom  of  His  Majesty's  other  Plan- 
tations, and  the  said  Assemblies  so  established,  from 
time  to  time,  to  call  and  summon  together,  and  by,  and 
with  their  consent,  to  make,  ordain,  and  constitute,  all, 
and  all  manner  of  laws,  statutes,  ordinances,  and  consti- 


222  OPINIONS  OF  EMINENT  LAWYERS. 

tutions,  for  the  good  of  the  said  Island,  the  inhabitants, 
and  government  thereof;  in  the  making  whereof,  the 
Governor  was  to  have  a  negative  voice,  and  also  by  their 
consent,  upon  eminent  occasions,  to  levy  money  for  the 
safety  or  good  of  the  public.  These  laws  to  be,  as  near 
as  might  be,  suitable  to  the  laws  of  England,  and  not  to 
extend  to  the  taking  away  rights  of  freehold,  or  loss  of 
member,  and  to  be  in  force  for  the  space  of  two  years,  and 
no  longer,  unless  confirmed  by  the  King. 

There  is  a  clause  in  these  instructions,  that  what  shall 
be  requisite  for  defraying  of  the  public  charge  and  ex- 
pense of  the  government,  shall,  with  the  advice  of  the 
Council,  be  laid  upon  hot  waters,  strong  drink,  import- 
ed, or  made  and  spent  there. 

It  does  not  appear,  that  any  Acts  or  orders,  in  the  na- 
ture of  laws,  were  made  by  Sir  Thomas  Modyford,  and 
his  Council ;  but,  in  1644,  he  held  an  Assembly,  which 
consisted  of  two  representatives,  chosen  by  each  Parish, 
by  virtue  of  the  King's  writ  issued  by  the  Governor, 
by  the  advice  of  the  Council,  at  which  several  bills  pas- 
sed, but,  whether  all  of  them  received  the  assent  of  the 
Governor  is  uncertain,  because,  to  some  of  them,  his 
consent  is  particularly  subscribed,  and  to  others  not, 
and  amongst  those  which  are  not  so  subscribed,  is  an 
Act,  entitled,  "  An  Act,  declaring  the  proceedings  of  the 
Assembly,  convened  by  the  Deputy-Governor,  Sir 
Charles  Littleton,  null  and  void  in  law."  The  reasons 
given  in  the  preamble  of  that  Act  arc.  that  disputes 
had  arisen,  touching  the  writ,  whereby  that  Assembly 
was  chosen,  and  the  manner  of  choosing  them,  and 
touching  the  validity  of  their  Acts,  by  reason  they  were 
not  signed  by  the  then  Deputy-Governor,  nor  by  the 
speaker  of  the  Assembly,  attd  that  the  substance  of  as 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS. 

many  of  them  as  had  been  thought  needful,  were  made 
laws  by  the  then  present  Assembly. 

Amongst  those  signed  by  the  Governor,  is  one  entitled 
"  An  Act,  declaring  the  laws  of  England  in  force  in  this 
Island,"  which  is  in  these  words :  be  it  declared  by  the 
Governor,  Council,  and  Assembly,  and  by  the  authority 
of  the  same,  that  all  the  laws  and  statutes  heretofore 
made  in  our  native  country,  the  kingdom  of  England, 
for  the  public  weal  of  the  same,  and  all  the  liberties, 
privileges,  immunities,  and  freedoms,  contained  therein, 
have  always  been  of  force,  and  are  belonging  to  His 
Majesty's  liege  people  within  this  Island,  as  their  birth- 
right, and  that  the  same  ever  were,  now  are,  and  ever 
shall  be,  deemed  good  and  effectual  in  the  law,  and  that 
the  same  shall  be  accepted,  used,  and  executed,  within 
this  His  Majesty's  Island  of  Jamaica,  in  all  points,  and 
at  all  times,  requisite,  according  to  the  tenor,  and  true 
meaning  of  them,  (except  only  such  statutes,  or  so  much 
of  them,  whereby  any  subsidies,  loans,  aids,  or  other  im- 
positions, were  granted  or  made):  provided,  neverthe- 
less, and  it  is  hereby  further  declared  and  enacted,  by 
the  authority  aforesaid,  that  the  said  laws  and  statutes 
may,  at  any  time  hereafter,  by  the  Governor,  Council 
and  Assembly,  be  mitigated,  altered,  lessened,  or  enlarg- 
ed, according  as  the  constitution  of  this  place  shall  re- 
quire, and  as  it  shall  seem  requisite  and  necessary,  to 
the  General  Assembly  then  in  being. 

This  Assembly  also  passed  a  revenue  Act,  imposing 
duties  upon  strong  liquors  imported,  varying  in  some 
few  particulars,  from  the  former  duties,  and  likewise 
laying  a  duty  of  one  shilling  per  ton  on  ships  and  vessels 
belonging  to.  His  Majesty's  subjects  arriving  at  the  Is- 


224  OPINIONS  OF  EMINENT  LAWYERS. 

land,  and  two  shillings  per  ton  on  the  ships  and  vessels 
of  foreigners. 

But  this  Act  does  not  appear  to  have  been  subscribed 
by  the  Governor. 

The  5th  day  of  January,  1670,  Sir  Thomas  Lynch 
was  appointed  Lieutenant-Governor  of  Jamaica,  with 
the  like  powers  and  authorities,  in  case  of  the  absence, 
or  disability  of  Sir  Thomas  Modyford,  the  Governor,  as 
the  Governor  himself  had  ;  but  the  clause  in  his  instruc- 
tions, concerning  Assemblies,  and  the  making  of  laws,  is 
this:  you  shall  have  power,  with  the  advice  of  the 
Council,  to  call  Assemblies,  (according  to  the  custom  of 
our  other  Plantations,)  to  make  laws,  levy  monies  for 
our  service,  which  said  laws  are  to  be  as  agreeable  to 
the  laws  of  England  as  may  be,  and  shall  be  in  force 
for  two  years,  and  no  longer,  unless  they  shall  be  con- 
firmed by  us. 

In  1674,  the  Lord  Vaughan  was  appointed  Governor, 
with  power  to  hold  Assemblies,  and  pass  laws,  to  con- 
tinue for  two  years,  and  no  longer,  unless  confirmed  by 
the  King ;  and  under  him,  three  Assemblies  were  hold- 
en,  but  the  particular  Acts  passed  in  these  Assemblies 
do  not  appear. 

But  the  four  Governors  last  mentioned,  being  restrain- 
ed from  passing  laws  to  continue  for  any  longer  time 
than  for  two  years,  without  the  approbation  of  the  King, 
and  none  of  their  laws  having  received  such  approbation, 
they  are  all  long  since  expired. 

After  this,  the  Earl  of  Carlisle  was  appointed  Gover- 
nor, and  by  his  commission  and  instructions,  he,  and  in 
his  absence,  his  Lieutenant-Governor,  for  the  time  being 
were  empowered  to  make  laws,  with  the  consent  of  the 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  225 

Council  and  Assembly,  to  continue  in  force  until  His 
Majesty's  pleasure  should  be  signified  to  the  contrary : 
accordingly,  Sir  Henry  Morgan,  Lieutenant-Governor, 
with  the  consent  of  the  Council  and  Assembly,  in  the 
year  1681,  passed  twenty-eight  Acts,  one  whereof  was 
a  revenue  Act,  which  were  transmitted  into  England 
and  by  order  of  His  Majesty,  King  Charles  the  Second, 
in  Council,  dated  the  23d  day  of  February  1682,  were 
confirmed,  to  continue  in  force  for  seven  years  from  the 
1st  of  October,  1682.  A  copy  of  which  order,  specify- 
ing the  titles  of  the  said  Acts  is  hereunto  annexed,  mark- 
ed (A.) 

Sir  Thomas  Lynch  succeeded  the  Earl  of  Carlisle  as 
Governor,  and  had  the  like  power  to  make  laws,  with 
the  consent  of  the  Council  and  Assembly,  to  continue  in 
force  till  His  Majesty's  pleasure  should  be  signified  to 
the  contrary,  several  Acts  of  Assembly  having  been 
transmitted  by  him  to  England  for  the  royal  approbation, 
thirteen  whereof  (amongst  which  was  a  revenue  Act)were 
approved  by  King  Charles  the  Second,  in  Council,  the 
17th  day  of  April,  1684,  and,  together  with  so  much  of 
the  Acts  of  1682  as  were  not  thereby  repealed,  were  or- 
dered to  continue  in  force  for  one  and  twenty  years,  from 
the  1st  day  of  November,  1683.  A  copy  of  this  order, 
in  which  also  the  titles  of  these  last  mentioned  Acts  are 
specified,  is  annexed,  marked  (B.) 

Before  the  said  term  of  one  and  twenty  years  expired, 
viz  :  in  1703,  an  Act  passed  in  the  Assembly  of  the  is- 
land, entitled,  "  An  Act  for  raising  a  revenue  to  Her 
Majesty,  her  heirs,  and  successors,  for  the  support  of  the 
government  of  this  island,  and  for  maintaining  and  re- 
pairing Her  Majesty's  forts  and  fortifications,"  which 
was  confirmed  by  Her  late  Majesty,  in  Council  the  17th 
30 


226  OPINIONS  OF  EMINENT  LAWYERS. 

day  of  August,  1704.  This  is  the  revenue  Act  now  sub- 
sisting, and  therein  is  an  express  clause,  that  all  the 
laws  of  Jamaica  confirmed  in  Council,  the  17th  day  of 
April,  1684,  for  one  and  twenty  years,  and  not  before 
that  time,  or  thereby  repealed,  and  also  that  Act  should 
continue  in  force  for  the  space  of  one  and  twenty  years, 
from  the  1st  day  of  October,  1703. 

It  has  been  represented  to  us,  by  Mr.  Popple,  that 
between  the  respective  periods  of  the  continuance  of  the 
two  last  mentioned  bodies  of  acts,  and  also  since  the  last 
confirmation,  several  particular  Acts  of  Assembly  have 
passed,  which  are  perpetual  in  their  nature,  and  have 
been  generally  confirmed  by  the  Crown,  without  rela- 
tion to  the  other  laws. 

All  these  Acts  (except  the  four  last)  are  contained  in 
the  printed  collections  of  the  laws  of  Jamaica,  and  a 
schedule  of  the  titles  of  them  is  hereunto  annexed, 
marked  (C.) 

It  has  been  represented  to  us,  by  Mr.  Popple,  that 
there  are  nine  acts  of  Assembly,  perpetual  in  the  frame 
of  them,  which  have  been  transmitted  hither  at  several 
times,  between  the  year  1712,  and  the  year  1723,  which 
have  not  hitherto  been  either  approved  or  disallowed 
by  the  Crown,  so  that  these  have,  at  present,  the  force 
of  laws  in  the  island.  A  schedule  of  the  titles  thereof 
is  hereunto  annexed,  marked  (D.) 

From  this  account  of  the  laws  of  Jamaica,  which  is 
the  best  we.  have  been  able  to  collect,  we  are  of  opinion, 
that  all  the  acts  of  Assembly  specified,  and  confirmed, 
in  the  two  orders  of  Council,  of  the  1st  of  October,  1682, 
and  the  17th  April,  1684,  will  determine  with  the  reve- 
nue act,  on  the  1st  day  of  October  next :  amongst  these 
i#  the  only  law  now  in  being,  for  appointing  and  establish- 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  227 

ing  their  Assembly ;  an  act  for  settling  the  militia ;  an 
act  for  establishing  Courts,  and  directing  the  marshal's 
proceedings,  which  regulates  the  course  of  legal  proceed- 
ings ;  an  act  for  ascertaining  the  quit  rents,  and  the 
manner  of  receipt  thereof;  and  several  other  acts  of 
great  consequence  to  the  government,  and  welfare  of  the 
colony. 

It  has  not  appeared  to  us,  that  any  acts  made  antece- 
dent to  those  of  1682,  do  now  continue  in  force,  or  can 
revive  upon  their  determination". 

The  printed  collection  of  the  laws  of  this  island,  be- 
gins w.ith  those  of  1682,  and  takes  no  notice  of  anything 
more  ancient ;  and  it  appears  by  what  has  been  already 
stated,  that  all  the  Governors  before  that  time,  (except 
Colonel  D'Oiley,  who  was  appointed  in  1660,)  were  re- 
strained to  make  laws  to  continue  any  longer  than  two 
years.  Therefore,  if  any  precedent  laws  can  be  pretend- 
ed to  be  in  force,  or  capable  of  being  revived,  they 
must  have  been  made  by  him.  But  it  seems  to  us  very 
doubtful  upnn  his  commission  and  instructions,  whether 
it  was  the  intention  of  the  Crown  to  give  him  a  general 
power  of  making  perpetual  laws,  or  only  ordinances  and 
regulations  for  the  present  administration  of  the  govern- 
ment ;  and  we  the  rather  incline  to  think  the  latter,  be- 
cause the  word  law  is  no  where  mentioned  in  the  au- 
thorities given  to  him,  and  there  is  110  reservation  of 
power  to  the  Crown  to  approve  or  disallow  the  constitu- 
tions he  should  make,  which  couM  hardly  have  been 
omitted,  if  it  had  been  intended  that  he  should  make 
perpetual  laws.  Besides  this,  it  is  to  be  observed,  that  his 
acts  were  made  by  'the  Governor  and  Council,  without 
any  Assembly  of  the  people,  and  though  that  Council 
was  directed  .to  be  indifferently  elected  by  as  many  of 


228  OPINIONS  OF  EMINENT  LAWYERS. 

the  officers  of  the  army,  planters,  and  inhabitants,  as  by 
the  Governor's  best  and  most  equal  contrivance  might 
be  admitted  thereunto,  and  in  that  respect  might  be  a 
kind  of  representation  of  the  people,  yet  how  that  power 
was  executed,  does  not  appear ;  and  in  fact  the  very 
first  Assembly,  which  was  held  in  the  year  1663,  made 
an  act  declaring  all  the  acts  made  by  the  Governor  and 
Council  (except  such  as  were  particularly  confirmed  by 
them)  null  and  void,  and  added  a  clause  to  indemnify  per- 
sons for  having  acted  under  them,  and  though,  by  the 
very  next  Assembly,  the  acts  of  the  first  Assembly  were 
declared  void,  yet  one  of  the  reasons  given  is,  tjiat  as 
many  of  them  as  were  needful,  had  been  re-enacted  by 
that  second  Assembly,  some  of  which  acts  so  re-enacted, 
are  to  the  same  effect  with  several  of  D'Oiley's  ordi- 
nances. 

As  there  are  those  doubts  concerning  those  acts  or 
ordinances  in  their  original,  and  no  complete  submission 
ever  yielded  to  them  by  the  people,  so  it  doth  not  ap- 
pear to  us  that  any  of  them  have  been  acted  under,  or 
put  in  practice  since  the  year  1663,  but  the  entries  in 
the  books  in  your  Lordships'  office,  do  in  our  apprehen- 
sion, import  the  contrary.  And  for  these  reasons,  we 
are  of  opinion  that  they  cannot  now  be  considered  as 
subsisting  laws,  or  put  in  execution. 

As  to  such  acts  of  Assembly  as  have  been  made  since 
the  year  1682,  perpetual  in  their  nature,  and  confirmed 
generally  by  the  Crown,  which  are  specified  in  the 
schedule  marked  (C.),  we  apprehend  they  will  continue 
in  full  force  after  the  expiration  of  the  revenue  act :  and 
so  will  also  those  other  acts,  not  yet  approved  or  disal- 
lowed, mentioned  in  schedule  (D.),  until  His  Majesty 
shall  be  pleased  to  declare  his  disallowance  of  them,  and 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  229 

then  they  will  cease.  These  are  the  only  acts  of  As- 
sembly of  the  island  which,  so  far  as  we  have  been  able 
to  be  informed,  will  remain  in  force  after  the  1st  day 
of  October,  1724. 

Such  acts  of  Parliament  as  have  been  made  in  Eng- 
land, to  bind  the  Plantations  in  general,  Jamaica  in  par- 
ticular, and  also  such  parts  of  the  common,  or  statute 
law  of  England  as  have,  by  long  usage,  and  general  ac- 
quiescence, been  received  and  acted  under  there,  though 
without  any  particular  law  of  the  country  for  that  pur- 
pose, will  (as  we  humbly  conceive)  continue  of  the  same 
force  after  the  first  day  of  October  next  as  they  were 
before.  \  ? 

But  we  must  observe  to  your  Lordships,  that  we  ap- 
prehend there  may  be  great  difficulties  in  putting  such 
laws  as  will  continue  in  force,  in  execution  after  that 
time ;  because,  though  the  Courts  of  Judicature  which 
have  been  erected  by  the  Governor  and  Council,  from 
time  to  time,  by  authority  from  the  Crown,  will  remain 
in  the  state  they  now  are,  yet  particular  regulations 
and  kinds  of  process  and  forms  of  proceedings,  having 
been  instituted  by  Acts  of  Assembly  which  will  expire, 
it  will  be  difficult  for  the  Judges  to  know  by  what  rules 
to  proceed. 

The  next  general  question  upon  which  your  Lord- 
ships are  pleased  to  require  our  opinion,  is :  Upon  what 
foot  the  government  of  Jamaica  will  continue,  after  the 
first  of  October  next,  particularly  in  relation  to  its  de- 
pendence upon  the  authority  of  the  Crown  of  Great 
Britain. 

As  to  this  point,  we  apprehend  that  the  expiration  of 
the  Laws  before  mentioned,  will  not,  in  general,  weaken- 
or  take  from  the  dependence  of  this  Island  upon  the 
Crown  of  Great  Britain* 


230  OPINIONS    OF    EMINENT    LAWYERS. 

The  powers  given  by  His  Majesty's  commission  and 
instructions  to  this  government,  or  the  Governor*  and 
Council,  will  remain  as  they  are  now,  unless  any  partic- 
ular parts  of  them  relate  to  the  putting  in  execution 
Acts  of  Assembly  which  will  then  expire. 

His  Majesty  may  also,  under  His  Great  Seal,  give 
such  further  powers  to  his  Governor,  to  be  exercised  by 
him  alone,  or  with  the  advice  of  a  Council,  (the  power 
of  appointing  which  will  still  remain  in  His  Majesty,)  as 
shall  be  found  necessary  for  putting  in  execution  the 
laws  which  remain  in  force ;  and  also  for  appointing 
judges  and  officers,  and  administering  justice  in  his 
courts ;  for  ordering  the  militia ;  and  doing  all  other 
acts  which  belong  to  His  Majesty  to  do,  by  his  preroga- 
tive. And  in  legal  proceedings,  an  appeal  will  lie  to 
His  Majesty  in  Council,  in  the  same  manner  as  it  does 
now. 

The  chief  difficulties  with  regard  to  government,  will 
arise  under  the  head  of  the  revenue  to  the  Crown,  and 
the  power  of  making  new  laws. 

As  to  the  revenue,  it  does  not  appear  to  us  that  any 
will  subsist,  after  the  determination  of  the  present  reve- 
nue act,  besides  the  rents  reserved  upon  the  grants  of 
lands,  licences  for  selling  strong  liquors,  and  the  casual 
revenue  of  fines,  forfeitures  and  escheats  ;  in  the  recov- 
ery whereof  there  may  be  also  some  difficulties,  by  rea- 
son of  the  expiration  of  the  laws  directing  the  methods 
of  proceedings  now  in  use.  As  to  the  power  of  raising 
any  new  revenue  for  the  support  of  government,  by  lay- 
ing new  taxes  or  impositions  upon  the  people,  that  will 
depend  upon  the  question,  whether  Jamaica  is  now  to 
be  considered  merely  as  a  colony  of  English  subjects,  or 
as  a  conquered  country ;  if,  we  apprehend,  as  a  colony 
of  English  subjects,  they  cannot  be  taxed,  but  by  the 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.          231 

Parliament  of  Great  Britain,  or  by  and  with  the  consent 
of  some  representative  body  of  the  people  of  the  island, 
properly  assembled  by  the  authority  of  the  Crown  ;  but, 
if  it  can  now  be  considered  as  a  conquered  country,  in 
that  case,  we  conceive,  they  may  be  taxed  by  the  au- 
thority of  the  Crown. 

As  to  the  fact  upon  which  this  question  (which  is  of 
great  weight  and  importance,)  doth  arise,  we  apprehend 
sufficient  materials  have  not  been  laid  before  us  to  enable 
us  to  judge  thereof,  for  which  reason  we  have  offered  our 
opinion  to  your  Lordships,  upon  a  supposition  that  it  may 
come  out  either  way  ;  but,  if  it  should  appear  that  this 
island  can  now  only  be  considered  as  a  colony  of  Eng- 
lish subjects,  yet  we  are  clearly  of  opinion,  that  since 
the  present  Act  of  Assembly  of  1682,  appointing  the 
number  of  members  of  the  Assembly  and  the  places 
from  whence  they  are  to  come,  will  expire  with  the 
revenue  act,  on  the  first  day  of  October  next,  it  will 
after  that  time,,  be  in  the  power  of  His  Majesty,  by 
his  commission  and  instructions  to  his  Governor,  to  ap- 
point Assemblies,  to  be  summoned  in  such  manner  as 
His  Majesty  shall  think  fit,  both  as  to  the  number  of  the 
whole,  the  number  of  representatives  to  be  elected  for 
particular  places,  and  parts  of  the  island,  and  the  quali- 
fications, both  of  the  electors  and  the  elected;  provided 
such  order  and  method  be  observed  therein  as  that  they 
be  reasonably  understood  to  be  a  representation  of  the 
people. 

This  power  was  exercised  by  His  Majesty's  predeces- 
sors, before  that  act  of  1682  passed,  and  consequently 
will  remain  entire  to  the  Crown,  after  it  shall  expire ; 
and  such  assemblies,  so  summoned,  will  have  the  same 


232  OPINIONS  OF  EMINENT  LAWYERS. 

authorities  to  make  laws  and  raise  money,  as  the  pre- 
sent or  any  other  Assembly  have  been  possessed  of. 

P.  YORKE. 
May  18,  1724.  C.  WEARG. 

(8.)  2  he  opinions  of  Nor  they,  Ryder  and  Strange,  on 
the  discontinuance  of  the  American  Act  of  Queen  Anne- 

[Copy  of  the  opinion  of  the  late  Sir  Edward  Northey, 
His  Majesty's  Attorney-General,  in  relation  to  the 
American  Act,  dated  the  10th  of  February,  1715-16.] 

I  am  of  opinion,  that  the  whole  American  Act  was 
intended,  and  appears  to  have  been  intended,  only  for 
the  war. 

EDW.  NORTHEY. 

[Copy  of  the  joint  opinion  of  Sir  Dudley  Ryder,  Attor- 
ney, and  Sir  John  Strange,  Solicitor-General,  in  rela- 
tion to  the  American  Act,  dated  the  17th  July,  1740."] 

We  have  perused  the  several  clauses  in  the  American 
Act,  and  by  comparing  the  several  clauses  together,  it 
seems  to  us,  that  the  Act  is  not  now  in  force,  but  expired 
at  the  end  of  the  then  war. 

DUDLEY  RYDER. 

July  17,  1740.  JOHN  STRANGE. 


Of  the  Colonial  Constitutions. 


IV.  Of  the  colonial  constitutions,  which  were  various- 
ly modified  :  First,  Of  the  Governor,  who  derives  his 
power  from  the  King's  commission,  under  the  great  seal, 
and  his  rules  of  conduct  from  the  King's  instructions, 
under  the  sign  manual ;  Second,  Of  the  King's  Colonial 
Councils,  who  derive  their  authority,  both  executive 
and  legislative,  from  the  King's  instructions  to  the  Gov- 
ernor ;  ITiird,  Of  the  Representative  Assemblies,  who 
were  chosen  by  certain  classes  of  the  colonial  people. 
There  is  on  this  topic  much  complication  :  the  right  of 
granting  a  representative  assembly,  at  what  time,  and 
under  what  circumstances,  belonged  to  the  King,  sub- 
ject to  after  regulation  by  the  local  legislature :  the 
colonists  carried  with  them  the  fundamental  right  of  nei- 
ther being  taxed,  nor  ruled,  but  with  their  own  assent, 
given  either  directly,  or  virtually. 

First,  Of  the  Governor. 

(1.)  See  the  opinion  of  the  Attoi'ney-General  Blen- 
man,  of  Ba/rladoes,  in  1729. 

His  Majesty's  Attorney-General  for  this  island  is  de- 
31 


234  OPINIONS  OF  EMINENT  LAWYERS. 

sired  to  give  a  full  and  explicit  answer  to  the  following 
qucere,  viz. 

Qucere. — Whether,  notwithstanding  the  King's  second 
proclamation  for  continuing  all  officers  in  their  respect- 
ive posts  after  six  months  from  the  demise  of  the  late 
King,  the  act  for  supporting  the  honor  and  dignity  of 
the  government  did  not  determine,  and  the  salary  of 
£6000  per  annum,  thereby  provided  for  the  Governor, 
ceased  to  be  due,  by  reason  that  his  new  commission 
was  not  obtained  before  the  six  months  elapsed  1  And, 
whether  the  gentlemen  of  the  vestry  for  St.  Michael's 
parish  are  obliged,  or  may  refuse,  to  lay  the  tax  this 
year,  as  they  have  usually  done,  in  pursuance  of  the 
said  law  ;  or  what  will  be  proper  for  them  to  do  in  this 
case :  divers  of  them  being  apprehensive  that  if  they  lay 
the  tax  they  do  thereby  allow  the  act  to  be  in  force,  and 
they  will  be  afterwards  bound  by  it,  although  they  are 
of  opinion  the  said  law  is  in  fact  determined  1 

It  has  been  generally  held,  that  at  common  law,  all 
patents  determined  by  the  death  of  the  King  by  whom 
they  were  granted;  and  it  is  observable,  that,  on  the 
death  of  King  James  the  First,  the  judges  thought  it  saf- 
est not  to  act  till  their  patents  were  renewed,  although 
there  had  been  a  proclamation  for  continuing  them  in 
their  several  offices  as  before ;  the  reason  of  which  opin- 
ion so  far  prevailed,  that  even  on  the  abdication  of  King 
James  the  Second,  many  lawyers  held  that  the  judges' 
commissions  determined,  from  the  time  of  the  King's 
withdrawing.  However,  by  the  stat.  7  and  8  W.  3, 
which  was  explained  by  a  .subsequent  stat.  of  1  Queen 
Anne,  ch.  8,  all  commissions  of  patents  are  made  to  con- 
tinue for  six  months  after  the  demise  of  the  King,  unless, 
superseded,  in  the  mean  time,  by  the  successor.  Now 


OF  THE  COLONIAL  CONSTITUTIONS.        235 

the  Governor,  holding  his  place  by  virtue  of  a  commis- 
sion from  the  late  King,  and  that  not  having  been  re- 
newed by  his  present  Majesty  till  after  the  six  months 
were  elapsed,  it  would  seem  just  enough  (taking  it  in 
this  light)  to  infer,  that  his  excellency  ceased  to  be  Gov- 
ernor, at  the  expiration  of  the  six  months ;  and  conse- 
quently that  the  act  was  no  longer  in  force,  the  same 
being  limited  to  continue  only  so  long  as  Mr.  Worsley 
should  continue  to  be  His  Majesty's  Captain-General, 
and  Governor-in-chief,  and  in  that  quality  personally  re- 
side in  the  island.  But,  I  apprehend,  that  this  case 
will  turn  upon  its  own  particular  circumstances,  and  the 
reasonable  construction  which  is  to  be  made  of  the  act 
for  settling  the  £6000  per  annum,  abstracted  from  any 
regard  to  the  commission,  which  is  not  mentioned 
in  it. 

I  take  it  then  to  be  clear,  that  the  intention  of  the 
law  was  to  make  a  suitable  provision  for  His  Excellen- 
cy, as  long  as  he  should  continue  in  the  government ;  for 
to  continue  His  Majesty's  Captain-General,  is  undoubt- 
edly the  same  as  if  the  words  had  been,  to  continue 
the  King's  Captain-General;  and  since  the  King,  in  a 
legal  understanding,  never  dies,  it  seems  to  me,  that 
those  words  do  not  confine  such  provision  for  the  Gover- 
nor to  the  then  reign  onVy ,  but  that  they  take  in  the 
whole  time  of  his  residence  here  as  chief  magistrate, 
which  construction,  I  think,  is  plainly  indicated  by  the 
preamble  to  the  act.  Now  it  is,  certain  that  Mr.  Worsley 
has  continued  personally  to  reside  in  this  island  ever 
since  his  first  arrival  in  the  quality  of  Captain-General, 
&c.,  and  that  he  hath  during  that  time  exercised  all  acts 
of  government,  in  every  respect,  without  interruption  ; 
whereas,  if  the  royal  proclamation  was  not  sufficient 


236  OPINIONS  OF  EMINENT  LAWYERS. 

(here,  in  one  of  the  King's  colonies)  to  continue  his  Ex- 
cellency in  his  government  from  the  end  of  the  six 
months  to  the  date  of  the  new  commission,  I  conceive 
all  such  acts  of  his,  during  that  interval,  as  well  as  those 
of  subordinate  magistrates  and  judges,  were  absolutely 
void,  and  there  would  have  been  a  total  discontinuance 
of  all  process  and  causes,  both  civil  and  criminal, 
throughout  the  island,  which  would  introduce  the  ut- 
most confusion,  in  point  of  property,  and  occasion  other 
inconveniences  of  the  most  dangerous  tendency.  If, 
then,  the  second  proclamation  did  effectually  prevent 
these  fatal  consequences,  which  the  nature  and  necessity 
of  the  thing,  as  well  as  the  general  practice  of  all  in 
authority  at  that  time  (and  perhaps  of  many  who  now 
start  the  objection,)  doth  evince,  it  must  be  allowed 
that  Mr.  Worsley  continued  His  Majesty's  Captain-Gen- 
eral, and  Governor-in-chief  of  this  island,  without  inter- 
mission; and  from  thence  it  will  as  strongly  follow, 
that  the  act  for  supporting  the  honor  and  dignity  of  the 
government  is  not  determined.  But  admitting  there 
were  any  doubt  of  this  matter,  I  should  think  it  the 
safest  way,  for  such  as  are  concerned  in  a  public  capaci- 
ty, to  do  what  is  required  of  them  by  the  act,  since  it 
hath  not  yet  been  declared  void  by  a  competent  author- 
ity ;  but,  on  the  contrary,  it  is  manifest  from  the  Gov- 
ernor's new  instructions  on  this  head,  that  it  is  taken 
to  be  still  in  force,  by  the  same  sovereign  power  which 
confirms  or  repeals  all  laws  made  in  this  place.  And  as 
the  performing  the  duties  required  by  the  act  will  avoid 
the  penalties  otherwise  to  be  incurred,  so  it  will  at  the 
same  time  leave  every  one  at  liberty  to  try,  if  he  pleas- 
es, the  validity  of  it,  in  the  courts  of  law.  Upon  the 
whole,  I  am  of  opinion  that  it  will  be  most  advisable  f<*r 


OF  THE  COLONIAL  CONSTITUTIONS.        237 

the  gentlemen  of  the  vestry  to  proceed  and  apportion  the 
tax  in  like  manner  as  they  have  hitherto  done  ;  but  they 
may,  however,  for  the  satisfaction  of  such  as  are  dubious, 
make  a  minute  in  their  parish  books,  reserving  to  them- 
selves all  benefit  and  advantage  of  exception,  in  case  the 
law  should  be  deemed  not  in  force,  which,  I  conceive, 
will  be  sufficient  to  put  the  gentlemen  of  the  vestry  up- 
on equal  foot  with  other  persons  in  this  respect,  whilst 
it  prudently  leaves,  at  the  same  time,  the  point  in  dis- 
pute to  be  determined  by  the  proper  judicature. 

J.  BLENMAN. 

April  10,  1729. 

(2.)  Ilie  opinion  of  Mr.  Ihomas  JReeve,  on  the  same 
subject,  1727-8. 

I  am  of  opinion,  that  this  act  is  not  determined  fay 
the  demise  of  His  Majesty,  King  George,  but  will  re- 
main in  force,  as  long  as  Mr.  Worsley  continues  Gover- 
nor of  Barbadoes,  and  shall  personally  reside  in  the  Is- 
land. It  is  observable,  that  the  tax,  &c.,  is  granted  to 
His  Majesty,  his  heirs,  and  successors,  during  the  con- 
tinuance of  the  act :  it  is  limited  to  continue,  for  so  long 
time  as  Mr.  Worsley  shall  continue  to  be  His  Majesty's 
Captain-General,  &c.  Yet,  I  conceive,  these  words  will 
have  the  same  construction,  as  if  it  had  been  limited  to 
continue  so  long  as  Mr.  Worsley  should  be  the  King's 
Captain-General ;  and  as  the  King,  in  law,  never  dies,  I 
conceive  the  demise  of  King  George  the  First  will  not 
be  a  determination  of  this  act. 

THOS.  REEVE. 

Jan.  15,  1727, 

i-J  -.V* 


238  OPINIONS  OF  EMINENT  LAWYERS. 

This  act  is  to  continue  no  longer  than  Mr.  Worsley 
shall  continue  Governor,  and  be  personally  resident  on 
the  island.;  if  he  once  ceases  to  be  Governor,  though  he 
hath  afterwards  a  new  commission  granted  him,  I  con- 
ceive the  act  is  determined.  By  the  statute  of  6th 
Anne,  the  commissions  of  the  Governors  of  the  planta- 
tions are  continued,  for  six  months  after  the  demise  of 
the  Queen,  or  her  successors,  and  if  a  new  commission 
was  granted  to  Mr.  Worsley  within  the  six  months  af- 
ter his  late  Majesty's  demise,  it  may  be  a  continuance 
of  him  as  Governor  within  the  intention  of  the  act, 
though  I  think  this  point  is  something  doubtful ;  but 
if  the  six  months  expired,  and  then  a  new  commission 
was  granted,  it  seems  to  me  that  the  act  is  determin- 
ed. 

THOS.  REEVE. 

Feb.  1, 1728. 

(3.)  Mr.  West's  opinion,  in  1725,  whether  a  Governor 
can  vote  as  a  Councillor. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  letter  from  Mr.  Popple,  dated  the  24th  day  of 
November  last,  I  have  considered  the  following  gu&re, 
Whether  a  Governor  can  vote,  as  a  Councillor,  in  the 
passing  of  bills,  when  the  council  sits  in  their  legislative 
capacity  ? 

Upon  consideration  of  which,  and  of  the  Governor's 
commission,  and  instructions,  I  am  of  opinion  that  a  Gov- 
ernor cannot,  by  law,  vote  as  a  Councillor  in  the  passing 


OF  THE  COLONIAL  CONSTITUTIONS.  239 

of  bills,  when  the  council  sits  in  their  legislative  capac- 
ity. 

RICH.  WEST. 

Jan.  8,  1724-5. 

(4.)  Mr.   Westfs  opinion  in  1719,  concerning  a  Gov- 
ernor^ s  pmver  to  prorogue  the  As-scmbly  Bunder  an  adjourn- 
ment. 
To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  the  following 
questions,  viz :  Whether  an  Assembly  under  adjourn- 
ment or  prorogation,  may  be  prorogued  without  a  meet- 
ing, according  to  such  previous  adjournment,  or  proroga- 
tion ?  And  I  am  clearly  of  opinion,  that  it  may. 

But,  as  I  believe  so  general  an  answer  to  the  question, 
will  not  be  esteemed  by  your  Lordship  to  be  satisfactory, 
1  shall  beg  leave  to  be  a  little  more  particular,  in  giving 
some  reasons  for  such  my  opinion, 

It  may  be  made  a  question,  whether  the  general  as- 
semblies of  the  several  provinces  in  the  West  Indies, 
may  be  entitled  to  those  privileges  which  are  claimed 
by,  and  have,  by  the  Crown,  been  allowed,  to  the  par- 
liaments of  England ;  but  it  is  most  certain  that  the 
prerogative,  in  relation  to  their  general  assemblies,  is  at 
least  as  extensive  as  it  ever  was  in  England.  In  respect 
to  our  parliaments,  and  this  prerogative  of  the  Crown, 
whatever  the  extent  of  it  may  be,  every  Governor,  by 
his  commission,  is  empowered  to  exercise  in  his  particu- 
lar province. 

The  prerogative  in  the  West  Indies,  unless  where  it 


240  OPINIONS  OP  EMINENT  LAWYERS. 

is  abridged  by  grants,  &c.  made  to  the  inhabitants  of  the 
respective  provinces  is  that  power  over  the  subjects, 
considered  either  separately  or  collectively,  by  their  rep- 
resentatives, which,  by  the  common  law  of  the  land,  ab- 
stracted from  all  acts  of  parliament  and  grants  of  liber- 
ties &c.  from  the  Crown  to  the  subjects,  the  King  could 
rightfully  exercise  in  England. 

The  only  point  of  prerogative  which  this  question  re- 
lates to,  is  that  power  which  the  Crown  has  of  summon- 
ing, proroguing,  &c.  of  parliaments;  and  here  your  Lord- 
ships will  be  pleased  to  observe  that  this  branch  of  the 
prerogative  does  at  this  time  subsist  entirely  upon  the 
foot  of  the  common  law  and  custom  of  parliaments, 
which,  in  this  respect,  must  be  considered  as  part  of  the 
common  law,  which  has  never  been,  in  this  particular, 
anywise  abridged  or  circumscribed  by  any  act  of  par- 
liament ;  and,  therefore,  if  the  affirmative  part  of  the 
question  is  impracticable  in  England,  it  is  impossible  a 
governor  should  be  empowered  to  practise  it,  in  Amer- 
ica. 

The  determination  therefore,  of  this  question  de- 
pends entirely  upon  the  custom  of  our  English  parlia- 
ments ;  in  relation  to  which  I  shall  observe  to  your 
lordships  these  two  particulars,  i.  e.  the  present  practice 
in  our  parliament  as  it  appears  to  the  public,  and  the 
words  of  the  writ  of  prorogation. 

Every  parliament,  whether  it  be  upon  original  sum- 
mons, or  prorogation,  &c.  is  always  appointed  to  meet  at 
a  day  certain,  on  which  day  the  members  are  obliged  to 
meet  together  unless  the  King  does  think  fit  to  dis- 
charge them  from  their  attendance  ;  and  as  their  obliga- 
tion to  attend  does  arise  from  writs  under  the  great  seal, 
their  discharge  must  likewise  flow  from  the  same  seal. 


OP  THE  COLONIAL  CONSTITUTIONS.  241 

Now,  if  a  parliament  is  summoned  to  meet  on  a  cer- 
tain day,  and  the  Crown  thinks  it  inconvenient  the  par- 
liament should  assemble  on  that  day  on  which  the  writs 
of  summons  were  returnable,  a  proclamation  is  issued 
(as  it  is  generally  supposed)  to  prorogue  the  meeting  of 
the  parliament  to  some  further  day,  without  there  being 
any  necessity  of  their  meeting  upon  that  day  upon 
which  their  attendance  was  required  by  the  original  writ 
of  summons.  In  this  present  parliament,  we  see  it  pro- 
rogued from  time  to  time,  and  proclamations  are  constant- 
ly issued  to  notify  it  to  the  kingdom;  and,  although  it 
is  usual  upon  those  days  to  which  parliament  stands  pro- 
rogued, and  when  a  further  prorogation  is  to  be  made, 
for  several  lords  and  members  of  the  house  to  attend  in 
the  parliament  chamber  on  that  day,  yet  such  their  at- 
tendance is  noways  necessary, but  the  prorogation  would 
be  just  as  good  if  they  were  all  in  the  country  and  the 
clerk  of  the  parliament  read  the  writ  to  his  fellow  offi- 
cers; for  the  writ  of  prorogation  being  always  tested 
some  day  before  the  day  to  which  parliament  stood  pro- 
rogued, all  the  members  are  thereby  actually  discharged 
from  their  attendance. 

I  would  beg  leave  further  to  observe  to  your  lordships, 
that  it  is  not  by  these  proclamations,  that  parliaments 
are  prorogued,  but  that  they  do  always  suppose  a  writ 
patent  for  the  prorogation,  which  writ  was  anciently, 
when  a  prorogation  was  intended,  sent  to  the  sheriffs  of 
the  several  counties,  by  whom  it  was  proclaimed,  in  or- 
der to  save  the  members  the  trouble  of  coming  from 
town,  and  the  counties  and  towns  they  represented,  the 
expense  of  their  journies;  but  the  latter  practice  has 
been  to  supply  this  by  printed  proclamations,  though, 
to  this  day,  according  to  the  ancient  custom,  the  writ  is 
32 


242  OPINIONS  OF  EMINENT  LAWYERS. 

constantly  read  in  the  parliament  chamber :  and,  that 
your  lordships  may  judge  whether  the  members  were 
discharged  from  attending  on  the  day  to  which  the  par- 
liament stood  prorogued,  and  that  consequently  no  meet- 
ing could  be  necessary,  I  must  beg  leave  to  mention  to 
your  lordships  some  clauses  of  the  writ. 

But  first  I  must  observe,  that  the  writ  is  not  directed 
to  any  particular  person,  but  is  general,  like  a  proclama- 
tion, the  style  of  it  is  thus:  " Prccdilectis  et  fidelibus 
nostris  pr&latis,  magnatibiis  et  proceribus  regni  nostri 
Angli(E  ac  dilectis  et  fidelilu-s  nostris  militibus,  civibus, 
et  lurgensibus  dicti  regni  nostri,  dec."  and  then,  after 
specifying  the  day  to  which  the  King  thinks  fit  further 
to  prorogue  his  parliament,  there  is  a  clause  inserted, 
for  no  other  purpose  but  to  discharge  the  members 
from  meeting,  on  the  day  to  which  they  were  antece- 
dently summoned,  viz :  ulta  quod  nee  vos,  nee  ccliquis 
vestrum  ad  dictum  diem  apud  civitatem  praedictam  com- 
perere  teneamini,  seu  arctemini  ;  volumus  enim  vos  et 
quemlibet  vestrum  inde  erga  nos  penitus  exonerari,  &c." 
Now  every  session  being  in  law  a  distinct  parliament, 
and  every  prorogation  putting  an  end  to  a  session,  the 
obligation  upon  the  members  to  meet  on  the  day  men- 
tioned in  the  writ  of  prorogation,  is  obviously  the  same 
as  it  was  upon  the  original  writ  of  summons  ;  and  con- 
sequently if  the  Crown  can,  by  writ  of  prorogation,  dis- 
charge the  members  from  attending  on  the  day  fixed  in 
the  first  writ  of  summons,  the  Crown  can,  in  like  man- 
ner, by  another  writ,  discharge  them  as  to  the  day  to 
which  the  parliament  stands  prorogued. 

As  to  adjournment,  whether  it  be  a  royal  adjourn- 
ment, or  an  adjournment  flowing  from  the  votes  of  the 
houses,  as  the  Crown  could  undoubtedly  dissolve  them 


OF  THE  COLONIAL  CONSTITUTIONS.  243 

without  suffering  them  to  meet,  which  puts  an  end  to 
their  very  being,  so  likewise  (which  is  an  act  of  less 
power)  can  it  prorogue  them,  which  is  only  determining 
that  session  which  was  continued  by  their  adjournment, 
though,  doubtless,  if  the  Crown  intends  to  continue 
the  session,  they  must  be  suffered  to  meet,  and  it 
must  always  be  in  the  power  of  the  Crown,  ad  libitum, 
to  put  an  end  to  one  session,  and  to  commence  another. 

RICH.  WEST. 
May  27,  1719, 

(5.)  The  opinion  of  tJie  Attorney  and  Solicitor-Gene- 
ral, Trevor,  and  Hawles,  in  1700,  on  the  determination 
of  a  Governor's  commission. 

To  the  Right  Honorable  the   Lords    Commissioners    of 
Trade  and  Plantations. 

May  it  please  your  Lordships ; 

Upon  perusal  of  their  Excellencies,  the  Lords  Jus- 
tices' letter  to  the  President  and  Council  of  Nevis,  dat- 
ed the  29th  September,  1698,  and  of  a  copy  of  a  com- 
mission, granted  by  His  Majesty  to  Colonel  Fox,  dated 
the  15th  November,  1699,  we  are  humbly  of  opinion, 
that  the  powers  and  authorities,  given  by  the  Lords  Jus- 
tices to  the  President  and  Council  of  Nevis,  were  deter- 
mined by  the  commission  to  Colonel  Fox,  upon  the  arri- 
val of  Colonel  Fox  there,  and  publication  of  his  com- 
mission, and  we  conceive  he  might  upon  his  coming 
there  before  Colonel  Codrington,  by  virtue  of  his  com- 
mission, dispossess  the,  President  and  Council,  and  as- 
sume to  himself  that  government,  until  the  arrival  of 

Coloiiel  Codrington  there. 

THO.  TREVOR. 

August  9,  1700.  J.  HAWLES. 

, 


244  OPINIONS    OF  EMINENT  LAWYERS. 

(6.)  The  opinion  of  the  Attoi*ney  and  Solicitor-Gen- 
eral, Yorke  and  Talbot.  on  the  effect  of  notice  on  the  va- 

'  **/  •/ 

lidity  of  a  Governor's  commission. 

The  Lords  Proprietors  of  Carolina,  having  always  ap- 
pointed governors  of  that  province,  before  they  made  a 
sale  thereof  to  the  Crown,  those  governors,  with  the 
consent  of  the  Council  and  assembly  there,  passed  laws, 
and  have  continued  so  to  do,  even  since  the  purchase 
made  by  the  Crown,  not  having  notice  of  the  said  pur- 
chase. 

Quaere. — Whether  any  laws  passed  after  the  said  pur- 
chase by  the  proprietor  governors,  in  their  name,  before 
notice  of  the  sale,  are  valid  ?  Whether  laws  passed  in 
the  proprietors'  names,  after  notice  of  such  purchase, 
and  before  the  King  appointed  a  governor  of  his  own, 
be  valid  1 

We  are  of  opinion,  that  laws  passed  by  the  Governor, 
appointed  by  the  Lords  Proprietors,  and  in  their  names 
after  the  sale,  and  before  notice  thereof  arrived  in  the 
province,  are  of  the  same  validity  as  such  laws  would 
have  been  if  they  had  been  passed  in  like  manner  before 
such  sale  ;  but  that  any  laws  passed  in  the  proprietors' 
names  after  notice  of  their  having  conveyed  their  in- 
terest to  the  Crown,  are  absolutely  null  and  void. 

P.  YORKE. 

August  II,  1732,  C.  TALBOT. 

(7.)  The  opinion  of  Mr.  Thomas  JReeve,  and  Mr. 
Lutwyche,  on  the  continuance  of  the  Governor's  com- 
mission. 

This  act  is  to  continue  no  longer  than  Mr.  Worsley 
shall  continue  Governor,  and  be  personally  resident  on 
the  island.  If  he  once  ceases  to  be  Governor,  though  he 


OF  THE  COLONIAL  CONSTITUTIONS.          245 

hath  afterwards  a  new  commission  granted  him,  I  con- 
ceive the  act  is  determined.  By  the  stat.  of  6  Ann,  the 
commissions  of  the  Governors  of  the  plantations,  are 
continued  for  six  months  after  the  demise  of  the  Queen, 
or  her  successors  ;  and  if  a  new  commission  was  grant- 
ed to  Mr.  Worsley,  within  the  six  months  after  his  late 
Majesty's  demise,  it  may  be  a  continuance  of  him  as 
Governor  within  the  intention  of  the  act,  though  I  think 
this  point  is  something  doubtful ;  but  if  the  six  months 
expired,  and  then  a  new  commission  was  granted,  it 
seems  to  me  that  the  act  is  determined. 

February  1,  1728.  T.  REEVE. 

I  am  of  opinion,  that  upon  the  demise  of  his  late  Ma- 
jesty, the  act  for  granting  the  £6000  per  annum,  did 
not  determine ;  for  I  think  it  is  clear,  that  the  Gover- 
nor's commission  continued,  for  the  space  of  six  months 
after  the  death  of  the  King,  by  virtue^of  an  act  of  par- 
liament, in  Queen  Anne's  reign,  unless  the  commission 
was  superseded  in  the  mean  time ;  and  if  the  commis- 
sion was  determined  by  ending  at  the  six  months,  I  am 
of  opinion,  that  the  act  had  determined  also,  though  the 
Governor  had  been  appointed  afterwards,  because  he 
once  ceased  to  be  Governor  under  any  commission.  But 
if  the  fact  was,  that  within  the  six  months  he  had  a  new 
commission,  it  is  doubtful  whether  his  continuing  Gov- 
ernor without  intermission,  will  not  be  sufficient  to  en- 
title him  to  the  £6000 per  annum  by  the  act ;  and  upon 
consideration  of  these  three  clauses,  I  am  inclinable  to 
think,  that  it  will  entitle  him  so  long  as  he  remains  Gov- 
ernor, and  continues  without  intermission  ;  but  perhaps 
it  might  be  made  plainer  by  seeing  the  whole  act. 

February  1,  1728.  T.  LUTWYCHE. 


246  OPINIONS  OF  EMINENT  LAWYERS. 

N.  B.  The  first  commission,  dated  llth  January,  the 
8th  year  of  our  reign.  The  second  commission,  dated 
8*th  May,  1728,  being  the  first  year  of  our  reign,  which 
was  eleven  months  after  the  late  King's  reign. 

(8.)  The  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Ryder,  and  Murray,  on  the  question,  whether  the 
great  seal  of  the  province  should  not  be  affixed  to  every 
act  of  government,  tJiat  requires  a  seal,  in  the  Colony. 

We  have  perused  the  case  you  inclosed  to  us,  by  the 
order  of  the  Lords  Commissioners  for  Trade  and  Planta- 
tions, and  find  it  necessary  to  trouble  you,  to  transmit 
to  us,  a  copy  of  my  Lord  Howe's  commission,  which  is 
but  shortly  stated  therein,  that  we  may  the  better  judge, 
when  we  peruse  the  whole,  whether  the  office  of  Survey- 
or-General was  in  his  power  to  dispose  of  by  that  com- 
mission, and  whether  his  private  seal  at  arms,  be  a  pro- 
per way-  of  putting  that  power  in  execution ;  we  there- 
fore desire  to  see  the  same,  and  to  know  whether  the 
Governor's  private  seal  is  commonly  made  use  of,  in  the 
grants  of  any,  and  what  offices  in  the  plantations. 

It  will  likewise  be  necessary  to  be  informed,  whether 
the  instance,  in  7690,  of  a  grant  of  the  same  nature,  be 
the  only  instance  of  the  grant  of  that  office,  or  whether 
it  has  been  usually  granted  in  the  same,  or  any,  and 
what,  different  manner,  and  under  what  seal,  and 
whether  generally,  or  for  life,  or  at  pleasure. 

D.  RYDER. 

February  26,  1736.  J.  STRANGE. 

Quaere. — Whether  the  great  seal  of  the  province,  or 
island,  should  not  be  affixed  to  every  act  of  government, 
that  requires  a  seal,  notwithstanding  it  may  have  been 


OF  THE  COLONIAL  CONSTITUTIONS.  247 

the  custom  to  appoint  certain  officers,  and  to  issue  pro- 
clamations, under  the  governor's  private  seal  at  arms  1 

We  have  perused  the  copy  of  my  Lord  Howe's  com- 
mission, and  Mr.  Popple's  answer  of  the  17th  inst.  to 
our  letter,  desiring  some  further  information,  and  which 
we  have  returned,  annexed  to  the  case. 

And  as  to  the  first  qucere,  we  observe,  that  there 
is  no  part  of  the  commission  that  gives  my  Lord  Howe 
a  power  to  grant  the  office  in  question,  the  only  clause 
which  we  can  find  relating  to  granting  offices  extending 
only  to  judicial  offices,  and  the  ministerial  ones  attend- 
ing upon  them.  But  supposing  a  power  in  the  Governor 
to  grant  the  office  in  question,  we  think  the  seal  to  be 
used  upon  that  occasion  ought  regularly  to  be  the  great 
seal :  but  if  there  never  was  any  grant  otherwise  than 
under  the  seal  at  arms  of  the  Governor,  and  that  has 
been  used  in  the  grant  of  other  such  like  offices,  such 
usage  may  dispense  with  the  general  rule  requiring  the 
great  seal,  and  the  grant  may  be  good  notwithstanding  j 
and  then,  we  are  of  opinion,  the  death  of  my  Lord  Howe 
will  not  put  an  end  to  the  grant. 

As  to  the  second  qucere,  we  are  of  opinion,  that  if 
such  proclamation  as  is  mentioned  had  issued,  it  would 
have  made  no  alteration  as  to  the  continuance  of  those 
civil  and  military  officers  in  their  employments,  who 
hold  the  same  under  the  hand  and  private  seal  of  the 
Governor. 

In  answer  to  the  third  qucere,  we  are  of  opinion,  it  is 
safest,  and  therefore  most  advisable,  that  all  acts  of  gov- 
ernment should  be  under  the  great  seal  of  the  island; 
though  if  there  has  been  such  an  usage,  as  is  mentioned 
in  the  queer e,  we  think  that  it  may  be  sufficient  to  jus- 


248  OPINIONS    OF  EMINENT    LAWYERS. 

tify  the  use  of  the  private  seal  at  arms  in  those  cases 
to  which  the  custom  extends,  which  however,  are  liable 
to  disputes  that  can  never  arise  if  the  great  seal  is 
used. 

D.   RYDER. 
February   26,  1736.  J.  STRANGE. 

(9.)  The  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Ityder,  and  Murray,  of  the  Governor's  right  to 
prorogue  the  Assembly  to  any  place  within  his  govern- 
ment. 
To  the  Right  Honorable,  the  Lords   Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships ; 

In  pursuance  to  your  Lordships'  desire,  signified  to  us 
by  Mr.  Hill,  in  his  letters  of  the  30th  of  April,  and  llth 
of  May  last,  referring  two  acts  passed  in  His  Majesty's 
province  of  North  Carolina,  in  1746,  viz  :  "an  act  for 
the  better  ascertaining  the  number  of  members  to  be 
chosen  for  the  several  counties  within  this  province,  to 
sit  in  general  assembly,  and  for  establishing  a  more 
equal  representation  of  all  His  Majesty's  subjects,  in  the 
house  of  burgesses ;"  "an  act  to  fix  a  place  for  the  seat 
of  government,  and  for  keeping  public  offices,  for  ap- 
pointing circuit  courts,  and  defraying  the  expense  there- 
of, and  also  for  establishing  the  courts  of  justice,  and 
regulating  the  proceedings  therein ;"  for  our  opinion, 
whether  the  said  acts  are  proper  to  be  confirmed  by 
His  Majesty,  and  transmitting  several  papers  relative 
thereto  (all  which  are  herewith  returned):  we  have 
taken  the  same  into  consideration,  and  have  heard  coun- 
sel-for,  and  against,  the  said  "act  for  the  better  ascertain- 
ing the  number  of  members  to  be  chosen  for  the  several 


OP  THE  COLONIAL  CONSTITUTIONS.        249 

counties  within  this  province,  to  sit  in  general  assembly, 
and  for  establishing  a  more  equal  representation  of  all 
His  Majesty's  subjects,  in  the  house  of  burgesses."  Al- 
though the  Governor  of  North  Carolina  may  certainly 
prorogue  the  Assembly,  to  meet  at  such  place,  and  time, 
as  he  shall  see  proper,  and  although  it  has  not  been 
made  out  sufficiently  to  Our  satisfaction,  that  the  pre- 
sence of  a  majority  of  the  whole  Assembly  is  absolutely 
necessary  to  the  doing  business,  as  alleged  by  the  peti- 
tioners against  the  said  last  mentioned  act ;  yet,  these 
two  acts  appear  to  have  passed,  by  management,  preci- 
pitation, and  surprise,  when  very  few  members  were 
present,  and  are  of  such  nature,  and  tendency,  and  have 
such  effects  and  operation,  that  the  Governor,  by  his  in- 
structions, ought  not  to  have  assented  to  them,  though 
they  had  passed  deliberately  in  a  full  Assembly ;  and 
we  are  of  opinion,  that  they  are  not  proper  to  be  con- 
firmed. 

D.  RYDER. 

December  1,  1750.  W.  MURRAY. 

(10.)  The  opinion  of  the  Chief-Justice  Morris,  of 
Neio  York,  on  the  question,  whether  the  change  of  the 
Governor  would  dissolve  the  Assembly. 

Qucere. — Whether  a  Governor  publishing  a  commission 
under  the  great  seal,  which  determines  that  of  a  former 
Governor,  can  legally  meet,  and  act  with  the  same  asj 
sembly,  that  was  chosen  by  virtue  of  the  King's  writs, 
tested  by  the  former  Governor,  they  standing  continued 
by  adjournment ;  or  whether  the  publication  of  such 
new  commission,  does  ipso  facto  dissolve  an  assembly, 
so  chosen,  notwithstanding  such  continuance  ? 
33 


250  OPINIONS  OF  EMINENT  LAWYERS. 

In  obedience  to  yo.ur  Excellency's  commands,  I  have 
considered  the  above  questions,  and  am  humbly  of  opin- 
ion, that  the  publication  of  your  Excellency's  commis- 
sion, determining  that  of  Brigadier  Hunter's,  doth  not 
dissolve  the  general  Assembly,  chosen  by  virtue  of  the 
King's  writs,  tested  by  Brigadier  Hunter,  but  that  you 
may  either  meet  them  at  the  time  they  stand  adjourned 
to,  or  adjourn  them  to  a  further  time,  if  you  think  con- 
venient, and  legally  act  with  them ;.  and  the  laws  made 
by  you  and  them  in  the  usual  manner,  will  be  as  legal- 
ly made,  and  as  much  binding,  as  any  other  acts  of  the 
general  assembly  of  this  province,  or  as  if  they  had 
been  made  by  you,  with  an  assembly  chosen  by  virtue 
of  His  Majesty's  writs,  tested  by  yourself. 

I  would  not  have  troubled  your  Excellency,  at  this 
time,  with  any  thing  but  this  direct  answer  to  your 
question,  had  not  a  groundless  notion,  contrary  to  law, 
and  the  received  practice  both  of  this,  and  all,  or  the 
greatest  part,  of  His  Majesty's  dependent  dominions, 
lately  obtained  among  some  persons,  viz  :  that  the  de- 
termining the  commission  of  a  Governor  has  the  same 
effects  upon  this  province,  as  the  demise  of  the  King 
would  have  both  upon  England  and  this  province. 

That  opinion,  if  propagated  with  the  zeal  some  weak 
men  seem  to  entertain  it  with,  will  at  this  time  be  of 
dangerous  consequence  to  the  public  peace,  and  may  for 
the  future  be  of  no  small  prejudice  to  the  service  of 
the  Crown :  I  shall  therefore  give  my  reasons  for  the 
answer  I  have  given,  and  endeavor  to  show  the  absurd- 
ity of  that  notion. 

Our  law  books  have  but  very  little  to  be  met  with, 
on  this  head,  the  powers  of  Kings  and  parliaments,  and 
their  acts,  being  rather  to  be  obeyed  than  disputed  :.  how- 


OF  THE  COLONIAL  CONSTITUTIONS.        251 

ever,  they  are  not  altogether  silent  on  the  subject,  and 
afford  us  one  rule  in  law,  that  I  take  to  be  sufficient  to 
govern  and  determine  this  matter.  It  is  in  Paston's  cast?, 
4th  Edw.  IV.  fo.  43.  44.  Paston  was  outlawed,  and  the 
certificate  of  outlawry  returned  in  the  time  of  Ed.  IV. 
by  two  coroners  of  the  county  of  Suffolk,  chose  in  the 
time  of  Hen.  VI.,  and  Paston's  counsel  prayed  the  out- 
lawry might  be  reversed,  because  the  power  of  the  coro- 
ners, as  well  as  other  officers,  determined  by  the  demise 
of  Hen.  VI.,  to  which  he  was  answered,  that  coroners 
were  chosen  by  virtue  of  the  King's  writ,  which  elec- 
tion, certified  into  the  chancery,  is  a  judicial  act  of  re- 
cord, and  judicial  acts  done  in  the  time  of  the  King 
that  was,  remained,  notwithstanding  the  demise  of  the 
King,  and  therefore  the  coroners  remained  ;  to  this  was 
replied,  that  the  election  of  knights  of  the  shire  was 
equally  a  judicial  act  of  record,  but  did  not  operate  so 
as  to  continue  the  knights  after  the  demise  of  the  King, 
because  by  such  demise  the  parliament  was  discontinued, 
&c.  The  case  is  a  long  case,  too  long  to  transcribe ;  I 
shall  therefore  take  it  as  it  is  abridged,  by  Sir  Robert 
Brooke,  in  the  time  of  Queen  Mary,  the  law,  in  that 
point,  of  coroners  and  knights  of  the  shire  being  as 
above,  viz :  that  the  choice  of  both  was  a  judicial  act  of 
record,  but  that  it  did  not  operate,  so  as  to  continue  the 
knight  of  the  shire  after  the  demise  of  the  King,  though 
it  did  to  continue  the  coroners  :  he  says  not,  that  a  co- 
roner is  not  made  by  commission,  but  by  writ,  and  when 
he  is  elected  by  writ,  this  is  returned  into  the  chancery, 
and  is  a  judicial  act  of  record ;  and  therefore,  when  the 
King  dies,  he  shall  remain,  whereas  all  manner  of  com- 
missions cease  by  the  demise  of  the  King,  as  commis- 
sions of  justices  et  liujus  modi,  but  judicial  acts  remain, 


252  OPINIONS    OP    EMINENT    LAWYERS. 

and  so  a  coroner  shall  remain,  till  removed  by  the  King's 
writ  (Catesby).  But  knight  of  the  shire  shall  cease, 
when  the  parliament  ceases,  by  demise  of  the  King,  or 
otherwise,  ratio  videtur,  because  the  parliament  ceases 
by  it,  contrary  of  coroners— that  is,  where  the  whole 
ceases,  the  constituent  parts  must  also  cease. 

It  was  an  agreed  point,  that  on  the  demise  of  the 
King  the  parliament  was  determined,  though  they  do 
not  tell  us  the  reason  why  ;  but  that  we  have,  in  the 
opinion  of  the  judges  in  Sir  Henry  Vane's  case,  viz  : — 
every  parliament  is  called  to  consult  with  the  person 
of  the  King  who  calls  it,  and  therefore,  upon  his  death, 
it  is  determined  ;  for  they  can  no  longer  consult  with 
him,  for  which  end  they  were  called.  Kelgyn's  Rep. 
f.  19. 

This  shows  why  the  demise  of  the  King  dissolves  the 
parliament ;  but  the  reason  is  not  the  same  on  the  deter- 
mining the  commission  of  a  Governor  ;  for  as  every  par- 
liament, called  to  consult  with  the  person  of  the  King 
who  calls  it,  must  determine  upon  the  demise  of  such 
King,  and  every  assembly  here  being  called  to  assist  our 
Captain-General,  and  Governor-in-Chief  of  our  province, 
&c.,  in  general  assembly,  &c,,  though  it  dissolve  on  the 
demise  of  the  King,  in  whose  name  the  writ  issued,  the 
Governor  being  not  longer  our  Governor,  that  is,  the 
Governor  appointed  by  the  King,  in  whose  name  the 
writ  issued ;  yet  should  there  be  ten  succeeding  Gover,. 
nors,  during  the  reign  of  one  King,  the  tenth  would  be 
as  much  our  Governor,  that  is,  the  Governor  of  that 
King,  in  whose  name  the  writ  issued,  as  the  first  was  ; 
and  the  assembly  being  continued  by  prorogation,  or  ad- 
journment, might,  by  virtue  of  that  writ,  as  legally  as* 
sist  the  tenth,  as  the  first. 


OF  THE  COLONIAL  CONSTITUTIONS.         253 

Some  persons  may  perhaps  be  of  opinion  that,  by 
our  Governor  is  meant  the  person  of  the  Governor  test- 
ing the  writs,  and  that  the  assembly  is  to  meet  him,  as 
the  parliament  is  to  meet  the  person  of  the  King  who 
calls  them  together.  If  this  opinion  be  true,  then  the 
death  or  removal  of  the  Governor  will  be  equal  (in  that 
case  at  least)  with  the  demise  of  the  King,  and  no  Lieu- 
tenant-Governor,  or  President  of  council  could  meet  with 
such  an  assembly ;  and  it  was  to  no  purpose  to  direct 
the  President  here  to  continue  the  present  Assembly: 
but  every  day's  practice  in  this  and  all  the  other  plan- 
tations shows  the  weakness  of  such  a  notion,  and  that 
they  may  meet  and  act  with  other  persons  than  the 
person  of  the  Governor  testing  the  writ.  Since,  then, 
the  person  of  the  Governor  is  no  otherwise  to  be  con- 
sidered, in  this  case,  than  as  the  servant  of  the  King  that 
sent  him,  and  the  assistance  intended  by  the  writ  is  not 
for  his  own,  but  the  benefit  of.  his  master,  whom  he 
here  represents,  it  is  plain,  both  from  the  words  and  in- 
tent of  the  writ,  that  the  assembly  may  as  legally  act 
with  the  tenth  Governor,  and  he  with  them,  (the  same 
King  continuing,)  as  with  the  first ;  so  that  the  deter- 
mination of  a  Governor's  commission  cannot  operate  to 
dissolve  an  assembly,  as  the  demise  of  a  King  does  to 
dissolve  a  parliament,  there  being  nothing  like  the  same 
reason,  or  one  of  equal  force ;  the  nature  and  intent  of 
the  writs  being  entirely  different. 

As  by  the  case  of  Paston,  it  was  a  point  agreed  that 
upon  the  demise  of  a  King  the  parliament  discontinued, 
the  reasons  of  which  I  have  shown,  and,  that  they  do 
not  at  all  concern  the  determination  of  a  Governor's 
commission :  so  another  point  by  that  case  agreed,  is, 
that  the  choice  of  them  is  a  judicial  act  of  record,  and 


254  OPINIONS  OP  EMINENT  LAWYERS. 

that  judicial  acts  of  record  remain.  If,  then,  the  death, 
removal,  or  determination,  of  a  Governor's  commission 
does  not  affect  this  province  and  the  assembly  in  the 
same  manner  that  the  demise  of  the  King  doth,  then  it 
will  follow,  that  an  assembly  regularly  chosen,  and  re- 
turned into  the  chancery  here,  is  such  a  judicial  act  of 
record  as  will  remain,  notwithstanding  the  determina- 
tion of  the  Governor's  commission,  or  such  death,  or  re- 
moval, of  a  Governor. 

That  the  death  or  removal  of  a  Governor  has  not 
that  effect,  is  agreed  on  all  hands,  for  that  does  not  de- 
termine his  own  commission,  a  Lieutenant-Go vernor,  or 
President  of  the  Council,  being  directed  and  enabled  to 
execute  the  powers  of  it;  so  that  the  matter  must  rest 
solely  on  the  determination  of  the  patent,  and  if  that 
has  not  such  an  effect,  the  case  will  be  pretty  clear  that 
the  determination  of  such  commission  does  not  dissolve 
the  general  assembly.  First,  the  determination  of  the 
Governor's  patent  does  not  determine  the  office  of  any 
person  holding  by  patent  under  the  great  seal  of  Eng- 
land, because  such  officer  holds  his  office  by  the  same 
authority  that  the  Governor  holds  his ;  and  if  it  can  be 
supposed  that  the  determining  of  one  patent  can  deter- 
mine another  independent  on  it,  the  determining  any 
other  patent  in  the  government,  may  equally  conclude 
the  rest,  and  the  determining  the  Secretary's  patent,  as 
effectually  determine  the  Governor's,  and  dissolve  the 
assembly,  as  the  Governor's  can.  Secondly,  neither 
does  it  determine  any  office  held  by  the  seal  of  this 
province  :  for  patents  under  the  seal  here  are  often 
given  by  the  King's  especial  directions  and  commands, 
in  which  the  Governor  is  always  ministerial ;  and  pa- 
tents under  the  great  seal  here  are  as  effectual  for  all 


OF  THE  COLONIAL  CONSTITUTIONS.         255 

the  purposes  intended  by  them,  as  if  they  had  been  un- 
der the  great  seal  of  England,  being  derived  from  the 
same  authority,  viz :  the  King ;  for  what  he  does  by 
another  is  of  equal  validity  as  if  done  by  himself,  and 
only  to  be  set  aside  the  same  way ;  therefore,  offices 
held  under  the  seal  of  this  province  are  no  more  voided 
by  the  determination  of  the  Governor's  patent  than  if 
the  same  offices  had  been  held  under  the  great  seal  of 
England.  Thirdly,  if  the  determination  of  a  Governor's 
patent  has  the  same  effects  with  respect  to  offices,  &c., 
here,  as  the  demise  of  a  King,  such  effect  must  be  occa- 
sioned either,  1st,  by  the  nature  of  the  thing,  or  2dly, 
by  the  express  words  of  the  patent  to  the  new  Governor 
or  some  other  patent,  signifying  such  to  be  His  Majesty's 
pleasure. 

First,  if,  from  the  nature  of  the  thing,  (viz  :  thatr 
upon  the  determining  of  a  derivative  power,  all  offices 
become  void,  that  are  held  by  patents  or  commissions 
tested  by  the  person  or  persons  exercising  such  deriva- 
tive power,)  then  the  present  Governor's  patent  will  be- 
come void  upon  the  King's  return  into  England,  and, 
for  any  thing  we  know  may  be  void  at  present,  which  it 
is  ridiculous  to  suppose,  and  of  dangerous  consequence 
to  the  public  administration  and  peace  to  maintain  :  it 
is  therefore  very  clear  no  such  effect  can  arise  from  the 
nature  of  the  thing ;  and  it  will  be  as  evident  to  any 
body  that  reads  the  Governor's  patent,  that  no  such  di- 
rection is  contained  in  the  words  of  that  patent,  nor  are 
there  any  other  letters  patent,  signifying  such  to  be  His 
Majesty's  pleasure. 

If,  then,  the  determination  of  a  Governor's  patent 
does  not  affect  this  province  in  such  manner  as  the  de- 
mise of  a  King  would  do,  in  the  determining  of  offices 


256  OPINIONS  OF  EMINENT  LAWYERS. 

and  commissions,  which  is  the  less  thing, — a  fortiori,  it 
cannot  affect  it  so  as  to  make  a  judicial  act  not  to  oper- 
ate, i.  e.  to  dissolve  an  Assembly,  which  is  the  greater. 
I  shall,  therefore,  lay  it  down  as  a  true  position  in  law : 
that  every  judicial  act  of  record  remains,  notwithstand- 
ing the  death  or  removal  of  a  Governor,  or  determina- 
tion of  the  powers  by  which  he  acts ;  an  Assembly, 
chose  by  virtue  of  the  King's  writs,  and  the  returns 
made  into  the  chancery  or  office  here,  is  a  judicial  act 
of  record  ;  therefore,  an  Assembly  so  chose,  &c.,  remains, 
notwithstanding  the  determination  of  the  Governor's 
patent.  4  E.  P. 

When  any  question  arises  here,  concerning  a  Gover- 
nor, or  assembly,  many  are  ready  to  ask  what  the 
King  or  parliament  of  England  does  on  a  like  occasion : 
vainly  thinking,  that  whatever  is  done  by  a  King  or 
parliament,  is  fit  to  be  drawn  into  example  for  this  place. 
However  extensive  that  notion  may  be  in  America,  it 
is  rather  to  be  laughed  at  than  argued  with ;  not  but 
that  the  wisdom  and  regularity  of  a  British  parliament 
are  very  fit  patterns,  so  far  as  they  are  imitable  by  us. 
But,  as  my  Lord  Vaughan  observes,  under  title  process 
into  Wales,  when  the  question  is  of  the  jurisdiction  in 
a  dominion  or  territory  belonging  to  England,  the  way 
to  determine  it,  is  to  examine  the  law  in  dominions,  the 
same,  in  specie,  with  that  concerning  which  the  ques- 
tion is.  So  the  question  being  here  concerning  an  as- 
sembly, and  whether  it  is  dissolved  by  the  determining 
the  powers  of  a  Governor's  commission,  the  way  to  de- 
termine it  is,  not  to  examine  how  far  a  King  and  Gov- 
ernor, or  a  parliament  of  England,  and  an  assembly  of 
this  province,  are  alike,  but  to  inquire  into  the  practice 
of  dependent  dominions,  like  ourselves,  such  as  Ireland, 


OP  THE  COLONIAL    CONSTITUTIONS.  257 

and  the  plantations;  and  if  we  find  the  determination 
of  the  commissions  in  those  places  never  was  thought 
to  dissolve  a  parliament  or  assembly,  we  have  no  reason 
to  conclude  it  will  do  so  here :  in  Ireland  there  was  but 
one  parliament  chosen,  which  continued  all  or  the  great- 
est part  of  the  Queen's  reign,  under  a  succession  of  sev- 
eral deputies. 

In  Barbadoes,  where  by  a  law  of  that  island  their 
Assemblies  are  annual,  I  am  informed  it  has  been  very 
common  to  act  with  an  assembly  chosen  in  the  time  of 
a  former  Governor :  it  has  been  done  in  Virginia,  in 
Maryland  while  under  the  King,  in  Pennsylvania,  nay, 
it  has  been  done  in  this  province^  for  Colonel  Fletcher, 
(justly  styled  the  great  patron  of  the  Church  here,)  met 
and  acted  with  an  assembly  summoned  by  Colonel 
Houghter.  And  upon  debate  of  this  very  question, 
which  was  started  by  some  of  the  members  of  the  then 
assembly,  it  was  the  opinion  of  himself  and  council,  ne- 
mine  cohtradicente,  and  of  the  Assembly,  that  it  was  a 
legal  assembly,  as  you  will  see  by  the  journals,  if  you 
please  to  inspect  them.  These  journals  were  sent  home, 
and  I  am  apt  to  believe  the  opinion  and  practice  were 
approved  of,  otherwise  the  Governor  would  have  been 
reprimanded,  and  the  succeeding  Governors  forbid  the 
doing  so,  nothing  like  which  has  been  done ;  and  the 
•  Earl  of  Ballamont,  who  succeeded  him,  was  so  far  from 
thinking  that  the  assembly  was  dissolved  by  his  pub- 
lishing the  King's  patent,  that  (if  I  am  rightly  inform- 
ed) he  published  a  proclamation  to  dissolve  the  Assem- 
bly chosen  in  the  time  of  Colonel  Fletcher,  So  that 
the  opinion  of  an  Assembly's  dissolution,  by  the  publish- 
ing a  new  patent,  is  but  of  late  date,  and  I  am  humbly 

of  opinion,  without  any  foundation  in  law. 

LEWIS  MORHIS, 
34 


258  OPINIONS  OF  EMINENT  LAWYERS. 

(11.)  The  opinion  of  Mr.  Hamilton,  an  eminent  law- 
yer of  Pennsylvania >,  on  the  same  subject. 

[Copy  of  a  letter  to  Dr.  Johnston,  one  of  the  council 
for  the  province  of  New  York,  from  Mr.  Hamilton  an 
eminent  lawyer,  at  Philadelphia.] 

Sir ; 

At  your  request  (though  in  much  haste,  this  being 
the  time  of  our  Supreme  Court),  I  have  considered  how 
far  it  is  agreeable  to  law,  for  a  succeeding  Governor  to 
meet  and  act  with  an  assembly  called  by  his  predeces- 
sor ;  and,  upon  the  whole,  it  appears  to  be  thus :  First, 
I  find  it  to  be  the  practice  of  several  of  the  govern- 
ments under  fhe  Crown,  to  meet  the  same  assemblies 
called  by  their  predecessor.  I  also  find  the  justices  and 
judges,  appointed  by  the  former  Governor,  continue  to 
act  by  the  same  commission  under  a  succeeding  Gover- 
nor, and  that  their  commissions  are  never  renewed,  but 
when  the  Governor  thinks  fit  to  make  some  change  in 
the  magistracy.  Thirdly,  that  no  military  officer  re- 
ceives any  new  commission  from  a  succeeding  Governor. 
These  'things  I  know  to  be  facts  ;  and  the  reason  then 
must  be  because  the  writs  and  commissions  by  which 
the  persons  are  called  or  commissionated,  are  the  King's 
writs  and  commissions,  and  not  the  Governor's  that 
grants  them.  These  considerations,  with  the  practice 
of  Ireland,  who  had  but  one  new  parliament  in  the 
Queen's  time,  and  had  six  several  Lords-Lieutenants, 
besides  ten  several  Lords-Justices,  is  full  proof  to  me 
that  the  test  of  a  writ  of  summons  for  holding  an  as- 
sembly, being  changed,  does  not  by  any  means  dissolve 
the  assembly.  As  to  the  objection  of  the  parliament  of 
Ireland  being  summoned  by  writ  under  the  great  seal  of 
England,  it  is  a  mistake :  for  both  history  and  law  do 


OP  THE  COLONIAL  CONSTITUTIONS.  259 

agree,  that  the  parliament  is  summoned  or  called  by  the 
Lord-Lieutenant,  under  the  great  seal  of  Ireland,  who 
indeed  cannot  call  a  parliament  until  he  has  obtained 
licence  from  the  King  for  so  doing  under  the  great  seal 
of  England. 

Now,  a  Governor  in  the  plantations  is  not  restrained 
or  tied  up,  for  his  commission  gives  him  a  power  gene- 
rally to  do  those  things,  which,  in  their  nature,  are  to 
be  done  by  a  Lord-Lieutenant,  by  special  licence.  See 
the  manner  of  calling  a  parliament  in  Ireland,  (upon  a 
question  which  arose  about  the  exposition  of  Poyning 
act,  as  it  is  called,)  resolved  by  the  two  chief  justices, 
the  chief  Baron  and  the  King's  learned  counsel,  in  4th 
Coke's  Institutes,  fol.  353. 

Heylin,  in  his  Cosmography,  says  the  Lord-Lieuten- 
ant summons  a  parliament  by  the  King's  appointment. 

Collier's  Historical  Dictionary  says  the  Lord-Lieuten- 
ant calls  and  holds  the  parliament  of  Ireland  by  the 
King's  licence. 

The  present  state  of  Great  Britain,  published  in  the 
year  1718,  the  fourth  edition,  title  Ireland,  page  58, 
says  the  parliament  is  at  the  King^  of  England's  pleasure, 
called  by  the  Lord-Lieutenant,  or  deputy,  and  by  him 
dissolved.  That  the  test  of  the  writ  is  in  the  LoKd- 
Lieutenant's  name,  appears  from  the  history  of  that 
country,  and  the  book  called  the  History  of  the  Reduc- 
tion of  Ireland. 

That  it  must  be  so,  appears  from  the  form  of  the  sum- 
mons made  by  a  guardian  of  England  in  the  King's  ab- 
sence, for  calling  a  parliament,  4th  Coke's  Institutes, 
fol.  6,  at  the  foot  of  the  page. 

Then,  if  it  be  so,  that  the  test  must  be  in  the.  name  of 
the  officer  who  calls  the  parliament,  as  undoubtedly  it 


260  OPINIONS    OF  EMINENT    LAWYERS. 

is,  see  how  absurd  it  is  to  say  that  the  determining  that 
officer's  commission,  can  dissolve  the  parliament,  when 
the  contrary  has  always  been  practised. 

In  the  first  year  of  Queen  Anne,  the  Duke  of  Ormond 
was  made  Lord-Lieutenant  in  the  room  of  the  Earl  of 
Rochester. 

In  February,  1702-3,  he  meets  the  same  Parliament 
that  was  in  being,  and  acts  -with  them.  Ormond  con- 
tinued Lord-Lieutenant  till  the  7th  of  April,  1707,  and 
then  Pembrooke  was  appointed  in  his  room:  he  arrives 
at  Dublin  the  24th,  and  on  the  7th  of  the  next  month, 
meets  the  parliament  then  in  being. 

On  the  29th  of  November,  he  prorogued  the  parlia- 
ment to  the  6th  of  May  next,  and  returns  to  Britain. 
In  October,  1708,  the  Lord  Wharton  is  made  Lord-Lieu- 
tenant, in  the  room  of  Pembrooke  ;  and  April  the  21st, 
arrives  at  Dublin,  and  then  prorogues  the  parliament, 
then  in  being,  to  the  5th  of  May  following,  at  which  day 
it  meets  ;  and  it  appears  in  the  speech  of  the  commons, 
that  that  parliament  had  held  many  sessions  before,  so 
it  was  not  one  of  his  calling.  On  the  30th  of  August, 
1709,  the  patliament  is  prorogued  to  the  13th  of  March. 
On  the  19th  of  May,  the  Lord-Lieutenant,  who  had  been 
over  in  Britain,  returns,  meets  the  same  parliament  and 
orders  the  choosing  of  a  new  speaker,  in  room  of  Allen 
Broderick,  who  was  'called  up  to  the  house  of  Lords  as 
chief  justice  of  the  King's  Bench  in  Ireland,  to  give  his 
assistance  there. 

August  the  28th,  the  parliament  was  prorogued  to 
the  8th  of  March  next,  and  the  Lord-Lieutenant  goes 
for  Britain.  July,  1711,  the  Duke  of  Ormond  appoint-, 
ed  Lord-Lieutenant  and  arrives  at  Dublin,  and  meets  the 
parliament  the  8th  of  July.  November,  1711, 


OP  THE  COLONIAL  CONSTITUTIONS.  261 

parliament  prorogued  to  the  2dof  September,  1712,  and 
goes  for  England. 

This  is  a  history  of  matters  of  fact,  by  which  it  ap- 
pears that  the  removal  of  a  Lord-Lieutenant  or  Gover- 
nor who  tests  a  writ  of  summons  for  a  parliament  or  an 
assembly  in  his  own  name,  neither  does  nor  ought  to 
dissolve  that  parliament,  or  assembly. 

These  are  the  grounds  of  my  judgment  for  the  legali- 
ty of  the  present  assembly  meeting  the  Governor.  I 
have  spent  as  much  time  as  my  private  affairs  would 
permit,  in  taking  the  opinion  of  the  men  of  the  best 
judgment  here,  (Philadelphia,)  and  I  have  met  with 
none  that  differ  from  me  in  judgment. 

But  how  far  it  may  be  convenient  for  the  Governor 
to  take  these  measures,  though  lawful,  I  cannot  say ;  nor 
can  I  see  what  can  be  objected  against  his  so  doing,  un- 
less the  people  say  that  it  is  striking  at  their  privilege, 
in  denying  them  the  opportunity  of  a  new  choice,  and 
this  is  fully  answered  by  the  arguments  in  favor  of  the 

septennial  bill. 

W.  HAMILTON. 
September  27,  1720. 


(12.)  Mr.  Fane's  opinion  on  the  nature  of  the  bond  to 
be  given  lyy  the  Governors  of  Proprietary  Governments, 
for  observing  the  Acts  of  I^'ade. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 
and  Plantations.  '  +" 

My  Lords  ; 

In  obedience  to  'your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  of  the  14th  of  this  instant, 
wherein  your  Lordships  are  pleased  to  desire  my  opinion 


262  OPINIONS  OP  EMINENT  LAWYERS. 

in  point  of  law  whether  in  obligations  which  are  made 
to  the  King's  Majesty,  the  word  executoribus,  or  succes-sor- 
ibus,  ought  to  be  made  use  .of.  The  act  of  the  33.d  of 
Henry  VIII.  chap.,  39,  expressly  directs  the  word  exec- 
utorib as  to  be  used  in  all  obligations  to  the  King,  con- 
sidering him  in  his  natural  capacity ;  and  a  punish- 
ment of  imprisonment  is  by  the  same  act  inflicted  upon 
such  persons  as  shall  make,  or  take,  such  obligations, 
unless  it  is  in  the  terms  prescribed  by  that  act.  There- 
fore, I  am  humbly  of  opinion,  since  this  law  has  so  par- 
ticularly directed  the  manner  of  taking  it,  the  King'  re- 
membrancer, who  is  the  proper  person  for  seeing  it  done 
in  the  most  regular  and  legal  method,  cannot  safely  act 
in  this  matter,  but  agreeably  with  this  law.  But  sup- 
posing this  act  was  not  in  force,  I  apprehend  a  bond, 
the  conditions  of  which  are  of  the  same  nature  with 
Major  Gordon's,  should  more  properly  be  taken  to  the 

King,  his  heirs,  or  successors. 

FRAN.  FANE. 
Feb  18,  1726-7. 

(13.)  The  opinion  of  the  Attorney  and  Solicitor- 
General:  Trevor  and  Howies,  on  the  trial  of  a  Z/ieuten- 
ant-6rovcnior,  and  other  legal  topics. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

In  answer  to  your  Lordships'  quseries,  signified  to  us 
by  Mr.  Popple,  the  30th  of  April  last,  relating  to  offen- 
ces committed  by  Captain  Norton,  and  against  the  act 
for  regulating  abuses  in  the  plantation  trade  :  we  are  of 
opinion  that  for  such  offence  or  wilful  neglect,  the 


OF  THE  COLONIAL  CONSTITUTIONS.  263 

Lieutenant-Governor,  Captain  Norton,  may  be  indicted 
and  tried  in  the  court  of  the  King's  Bench,  by  virtue  of 
the  act  for  punishing  governors  of  plantations  for  offen- 
ces committed  by  them  in  the  plantations  ;  but  we 
doubt  whether  he  will  incur  the  penalty  of  one  thousand 
pounds  by  the  act,  made  the  7th  and  8th  of  the  King, 
for  regulating  abuses  in  the  plantation  trade ;  for  the 
word  s  of  the  act  extend  to  Governors  and  Commanders- 
in-chief,  and  is  given  only  for  the  offence  of  not  taking 
the  oaths,  or  putting  the  acts  in  execution  ;  but  he 
will  be  finable  at  the  discretion  of  the  court. 

THOS.  TREVOR. 
June  4,  1701.  Jo.  HAWLES. 

Second.     Of  the  Council. 

(1.)  The  opinion  of  the  Attorney  and  ^Solicitor-General, 
Murray  and  Lloyd,  in   1755,  on  the  question  whether  the 
Governor  and  Council  have  the  power  of  making  laws. 
To  the  Right  Honorable   the  Lords    Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

Pursuant  to  your  Lordships'  desire,  signified  to  us  by 
Mr.  Hill,  in  his  letter  of  the  31st  of  March  last,  setting 
forth  that  a  doubt  having  arisen  whether  the  Governor 
and  Council  of  His  Majesty's  province  of  Nova  Scotia 
have  a  power  of  enacting  laws  within  the  said  province, 
and  Jonathan  Belchier,  Esq.  having  transmitted  to 
your  Lordships  his  observations  thereupon,  enclosing 
to  us  a  cop'y  of  the  said  observations,  together  with  cop- 
ies of  several  clauses  in  the  commission  and  instructions 
of  the  said  Governor  of  that  province  referred  to,  (all 
which  are  herewith  returned),  and  desiring  our  opinion 


264  OPINIONS  OF  EMINENT  LAWYERS. 

whether  the  said  Governor  and  council  have,  or  have 
not,  a  power  to  enact  laws  for  the  public  peace,  welfare 
and  good  government  of  the  said  province  and  the  peo- 
ple and  inhabitants  thereof:  we  have  taken  the  said  ob- 
servations and  clauses  into  our  consideration,  and  are 
humbly  of  opinion  that  the  Governor  and  council  alone 
are  not  authorized  by  His  Majesty  to  make  laws.  Till 
there  can  be  an  assembly,  His  Majesty  has  ordered  the 
government  of  the  infant  colony  to  be  pursuant  to  his 
commission  and  instructions,  and  such  further  directions 
as  he  should  give  under  his  sign  manual  or  by  order  in 
council. 

W.  MURRAY. 

April  29,  1755.  RICH.  LLOYD. 

(2.)  The  opinion  of  the  Attorney*General  JPratt,  on 
the  several  powers  of  the  Council  and  Assembly  of 
Maryland. 

As  to  the  nomination  of  officers  by  the  lower 
house. 

In  my  opinion  the  sole  nomination  of  those  commis- 
sioners who  are  new  officers,  appointed  by  this  bill,  be- 
longs neither  to  the  proprietary,  nor  the  lower  house ; 
but,  like  all  other  regulations,  must  be  assented  to  by 
both,  but  can  be  claimed  by  neither.  The  proprietary's 
charter  entitles  him  to  nominate  all  constitutional  offi- 
cers and  all  others  which  by  the  laws  are  not  otherwise 
provided  for ;  but  I  do  not  conceive  my  Lord  Baltimore 
has  any  original  right  to  nominate  new  officers,  appoint- 
ed for  the  execution  of  a  new  law,  without  the  consent 
of  the  two  houses,  nor,  on  the  other  hand,  have  the  low- 
er house  any  such  independent  authority  ;  and,  there- 
fore, I  think  the  upper  house  are  right,  notwithstanding 


OF  THE  COLONIAL  CONSTITUTIONS.  265 

this  claim  in  which  they  might  be  supported  by  the 
proprietary,  because  it  is  unreasonable  for  one  branch 
of  the  legislature  to  assume  a  power  of  taxing  the  other 
by  officers  of  their  single  appointment. 

As  to  the  insufficiency  of  the  allowance  of  the  com- 
missioners of  the  loan  office. 

My  Lord  should  not  meddle  with  this  question,  which 
is  proper  to  be  discussed  and  settled  by  the  two  houses, 
as  it  concerns  only  the  quantum  T)f  allowance  for  the 
officers,  and  does  not  encroach  upon  any  of  the  proprie- 
tary's rights. 

As  to  the  duties  required  from  Lord  Baltimore's  pri- 
vate officers,  his  agent  and  receiver. 

Here  my  Lord  ought  to  interpose,  for  it  is  a  great  in- 
dignity to  compel  his  Lordship's  agents  into  a  public 
service  without  making  them  a  liberal  allowance  and 
compensation  for  their  trouble. 

As  to  that  required  from  sheriffs. 

This  my  Lord  will  leave  to  be  debated  by  the  two 
houses. 

As  to  the  power  of  the  upper  house  to  examine  claims 
and  accounts. 

The  upper  house  are  right  in  making  a  stand  to  this 
clause  in  the  bill,  and  should  take  care  how  they  admit 
encroachments  of  this  kind,  when  they  are  supported  by 
arguments  drawn  from  the  exercise  of  the  like  rights  in 
the  House  of  Commons  here.  The  Constitutions  of  the 
two  assemblies  differ,  fundamentally,  in  many  respects ; 
our  House  of  Commons  stands  upon  its  own  laws,  the 
lex  parliam.,  whereas  assemblies  in  the  colonies  are  reg- 
ulated by  their  respective  charters,  usages  and  the 
common  law  of  England,  and  will  never  be  allowed  to 
assume  those  .privileges  which  the  House  of  Commons 
35 


266  OPINIONS    OF  EMINENT  LAWYERS. 

are  entitled  to  justly  here,  upon  principles  that  neither 
can,  nor  must  be  applied  to  the  assemblies  of  the  colonies. 

As  to  the  narrowness  of  the  exemption  of  persons  to 
be  assessors. 

My  Lord  has  nothing  to  do  with  this. 

As  to  the  double  tax  on  nonjurors. 

My  Lord  would  do  right  to  join  with  the  upper  house 
in  opposing  this  double  tax,  because  it  is  a  breach  of 
public  faith  and  tends* to  subvert  the  very  foundation  of 
the  Maryland  Constitution,  and  can  be  excused  by  no- 
thing but  a  well-grounded  jealousy  of  dangerous  prac- 
tices and  disaffection  in  the  papists. 

As  to  the  clauses  enabling  debtors  and  tenants  to 
retain. 

This  is  very  absurd,  but  my  Lord  need  not  meddle 
with  it.  '..  ? t  j 

As  to  the  tax  on  non-residents  and  imports. 

The  upper  house  are  clearly  right  in  that  part  of  the 
objection  which  relates  to  British  merchandise  imported ; 
for  I  am  satisfied  the  mother  country  will  never  endure 
such  an  impost  upon  their  trade.  The  province  may 
by  the  same  rule  prohibit  the  importation,  as  well  as 
they  may  tax  the  merchandise  imported ;  and  it  seems 
to  be  a  very  unwarrantable  attempt,  to  make  the  Eng- 
lish importer  of  goods  carried  to  Maryland  in  the  way 
of  trade,  pay  a  tax  for  the  defence  of  that  province,  for 
no  other  consideration  but  the  liberty  of  trading  there, 
to  which  they  have  an  original  right,  which  cannot  be 
invaded,  diminished,  or  even  regulated,  by  any  thing 
this  province  can  ever  do. 

As  to  the  tax  on  tenants  for  life. 

My  Lord  will  leave  this  to  be  settled  -by  the  two 
houses. 


OF  THE  COLONIAL  CONSTITUTIONS.         267 

As  to  the  tax  on  uncultivated  lands. 

This  seems  to  me  a  very  unreasonable  tax,  and  ought 
to  be  resisted  by  the  proprietary,  because  it  seems  prin- 
cipally to  be  levelled  at  his  estate. 

As  to  the  tax  on  plate  and  ready  money. 

My  Lord  has  nothing  to  do  with  this. 

As  to  the  tax  on  the  Governor. 

This  is  rather  an  uncivil,  than  unjust  tax ;  and,  there- 
fore, the  upper  house  would  do  well  to  oppose  it  as  far 
as  they  may  in  reason. 

Having  given  my  sense  on  each  of  the  objections,  so 
far  as  they  have  been  taken  up  and  maintained  by  the 
upper  house,  in  the  margin  of  that  part  of  the  case,  I 
shall  only  add  here  a  general  piece  of  advice  to  Lord 
Baltimore,  that  in  this  disposition  of  the  lower  house  to 
assume  to  themselves  any  privilege  which  the  English 
House  of  Commons  enjoy  here,  his  Lordship  should  re- 
sist all  such  attempts  where  they  are  unreasonable,  with 
firmness,  and  should  never  allow  any  encroachments  to 
be  established  on  the  weight  of  that  argument  singly ; 
for  I  am  satisfied  neither  the  Crown,  nor  the  parliament, 
will  ever  suffer  those  Assemblies  to  erect  themselves 
into  the  power,  and  authority,  of  the  British  House  of 
Commons. 

C.  PRATT, 


268  OPINIONS  OF  EMINENT  LAWYERS. 

(3.)  Tlie  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Henley  and  Yorke^  how  far  the  proclamation  of 
martial  laiv  suspends  the  functions  of  the  Council. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  commands,  signified 
to  us  by  Mr.  Pownall,  in  his  letter  of  the  22d  instant, 
acquainting  us  that  your  lordships  had  received  two  let- 
ters from  Henry  Moore  Esq.,  Lieutenant  Governor  of 
Jamaica,  informing  your  Lordships  that  he  had,  in  con- 
sequence of  advices  which  he  had  received  of  an  intend- 
ed invasion  of  that  island,  caused  martial  law  to  be  pro- 
claimed; and  that  His  Majesty's  council,  upon  being 
summoned  to  meet  in  their  legislative  capacity,  had  re- 
fused to  do  any  business,  alleging  that  neither  they  nor 
the  assembly  had  any  right  to  sit  or  transact  business 
after  the  publication  of  martial  law ;  and  also  transmit- 
ting to  us  copies  of  the  Lieutenant-Governor's  letters  and 
two  other  papers,  containing  the  reasons  assigned  by 
the  council  for  their  opinion,  and  their  answers  to  seve- 
ral questions  propounded  to  them  by  the  Lieutenant- 
Governor,  and  desiring  us  to  take  the  same  into  our  con- 
sideration and  report  to  your  Lordships  our  opinion 
thereon :  we  have  taken  the  same  into  our  considera- 
tion, and  are  of  opinion  that  there  is  no  foundation  for 
the  notion  of  the  council  that  the  proclaiming  of  mar- 
tial law  suspends  the  execution  of  the  legislative  author- 
ity which  may,  and  ought  to  continue  to  act  as  long  as 
the  public  exigencies  require. 

Nor  do  we  apprehend  that  by  such   proclamation  of 


OF  THE  COLONIAL  CONSTITUTIONS.         269 

martial  law  the  ordinary  course  of  law  and  justice  is  sus- 
pended or  stopped  any  further  than  is  absolutely  neces- 
sary to  answer  the  then  military  service  of  the  public 
and  the  exigencies  of  the  province. 

ROBT.  HENLEY. 
Jan.  28,  1757.  C.  YORKE. 

Third.     Of  the  Representative  Assembly. 

(1.)  The  opinion  of  the  Attorney-General  Raymond, 
on  the  King's  power  to  grant  the  privilege  of  having  an 
Assembly,  and  on  the  right  given  l>y  the  King  to  par- 
ticular districts,  to  choose  delegates. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships ; 

In  humble  obedience  to  your  Lordships'  commands, 
signified  to  me  by  Mr.  Popple,  by  his  letter  dated  the 
14th  day  of  June,  1722,  that  I  should  send  your  Lord- 
ships my  opinion  whether  His  Majesty  may  legally  al- 
ter the  present  constitution  of  the  assembly  in  New 
Jersey,  in  such  manner  as  Mr.  Burnett,  His  Majesty's 
Governor,  there  says  in  his  letter  would  be  for  His  Maj- 
esty's service,  and  in  what  manner  it  might  be  most 
properly  done,  (for  which  purpose,  the  extract  of  Mr. 
Burnett's  letter  and  his  printed  speech  to  the  assembly, 
in  which  is  set  out  a  true  copy  of  his  instruction  and 
the  printed  acts  of  that  colony,  were  sent  to  me,  and  are 
herewith  sent  back  to  your  lordships),  I  have  read  over 
the  said  extract  of  Mr.  Burnett's  letter,  his  speech,  and 
the  act  of  assembly  supposed  to  have  been  passed  ^in 
Lord  Lovelace's  time,  in  New  Jersey,  page  5,  entitled, 
"an  act  for  regulating  the  qualification  of  representa- 


270  OPINIONS  OP  EMINENT  LAWYERS. 

tives,  to  serve   in  the  general  assembly,  in  the  province 
of  New  Jersey  ;"  and  considered  thereof. 

And  I  certify  your  lordships,  that  as  the  right  of  send- 
ing representatives  to  the  assembly  and  the  qualifica- 
tion of  the  elector  and  elected,  for  any  thing  appearing 
to  me,  were  founded  originally  on  the  instructions  given 
by  the  Crown  to  the  Governor  of  New  Jersey,  and,  as  is 
observed  by  Mr.  Burnett,  have  already  received  altera-- 
tions  by  different  instructions  given  in  Lord  Cornbury's 
time,  and  the  election,  which  before  was  left  in  all  the 
freeholders  of  East  Jersey  and  West  Jersey,  respective- 
ly, and  fixed  in  the  method  now  established,  as  those 
new  instructions  given  in  lord  Cornbury's  time  made  the 
alteration  which  at  present  is  in  force,  I  am  of  opinion, 
by  the  same  reason,  by  new  instructions  to  be  given  by 
His  Majesty,  His  Majesty  may  lawfully  make  such  es- 
tablishments, as  to  the  electing  and  sending  representa- 
tives to  the  assembly,  as  Mr.  Burnett  in  his  letter  de- 
sires ;  and  indeed  the  reason  used  by  Mr.  Burnett  in  fa- 
vor of  such  an  alteration,  seems  to  me  to  have  a  great 
weight.  But  if  there  had  been  any  act  of  assembly  pass- 
ed and  approved  by  His  Majesty,  whereby  the  manner 
of  choosing  representatives  and  the  qualifications  had 
been  fixed,  that  would  have  had  a  different  effect ;  but 
nothing  of  that  nature  appears  to  me,  for,  as  to  the  act 
said  to  be  passed  by  Lord  Lovelace,  it  being  an  act  con- 
trary to  the  instructions,  and  never  approved  by  the 
Crown,  seems  to  me  void,  which  Mr.  Burnett  has  ob- 
served in  his  letter.  Therefore,  upon  the  whole  matter, 
I  apprehend  His  Majesty  may  in  point  of  law  comply 
with  Mr.  Burnett's  request,  in  empowering  the  new 
county  of  Hunterton  to  send  two  representatives,  and 
restrain  the  town  of  Salem  from  sending  any  represen- 


OP  THE  COLONIAL  CONSTITUTIONS.  271 

tatives  for  the  future,  if  it  shall  be  his  royal  pleasure  so 
to  do ;  and  the  manner  whereby  it  may  be  done,  I  con- 
ceive, may  be  by  His  Majesty  sending  his  Governor 
there  new  instructions  for  that  purpose. 

ROB.  RAYMOND. 
Sept.  16-1723. 

(2.)  The  opinion  of  tlie  Attorney  and  Solicitor-Gen- 
eral^ Ryder jind  Murray,  upon  the  issuing  of  writs  for 
choosing  new  representatives. 

To  the  Right  Honorable  the   Lords   Commissioners    of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  desire,  signified  to  us 
by  Mr.  Hill,  in  his  letter  of  the  10th  of  June  instant, 
representing  that  your  Lordships  having  lately  received 
a  letter  from  William  Popple  Esq.  His  Majesty's  Gover- 
nor of  the  Bermuda  Islands,  dated  the  16th  of  February 
last,  relating,  among  other  things,  to  having,  upon  the 
assembly's  neglecting  to  meet  at  a  certain  time,  to  which 
they  were  adjourned,  issued  writs  for  the  electing  new 
representatives,  without  the  dissolution  of  the  assembly  ; 
and  transmitting  an  extract  of  so  much  of  the  said  let- 
ter, and  copies  of  such  papers  therewith  transmitted,  as 
relate  to  this  proceeding ;  and  desiring  our  opinion, 
whether  the  said  governor,  when  the  speaker  and  all  the 
members  of  the  assembly  neglected  to  meet  at  the  time 
to  which  they  were  adjourned,  on  the  5th  day  of  Feb- 
ruary, in  the  morning,  could  legally  issue  writs  for 
choosing  new  representatives,  without  dissolving  that 
assembly ;  and,  whether  the  representatives,  chose  by 


272  OF  THE  COLONIAL  CONSTITUTIONS. 

virtue  of  such  writs,  issued  as  aforesaid  by  the  Governor 
without  a  dissolution  of  the  assembly,  will  constitute  a 
legal  assembly,  so  as  to  make  the  proceedings  of  such 
assembly  valid  :  we  have  taken  the  said  papers  into  con- 
sideration, and  are  of  opinion,  that  neither  the  assembly 
was  dissolved,  nor  did  the  members  lose  their  seats  by 
their  not  meeting  at  twelve  o'clock  on  the  5th  of  Feb- 
ruary, 1747-8,  and  that  there  was  no  ground  for  the 
hasty  step  taken  in  issuing  new  writs  for  supplying  their 
places  :  and,  as  the  writs  were  issued,  not  upon  the 
foot  of  any  supposed  dissolution,  but  to  supply  vacancies 
that  had  not  happened,  we  are  of  opinion,  the  members 
so  returned  on  those  writs  were  unduly  chosen,  and 
cannot  constitute  or  sit  as  a  legal  assembly. 

D.  RYDER. 
June  18,  1748.  W.  MURRAY. 

(3.)  The  opinion  of  the  same  lawyers,  on  the  right  of 
the  Grown  to  enable  particular  towns  to  send  delegates  to 
the  Assembly. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  to  your  Lordships'  desire,  signified  to  us 
by  Mr.  Hill,  in  his  letter  of  the  22d  of  January,  1746-7, 
representing  that  your  Lordships  having  received  a  let- 
ter from  Benning  Wentworth,  Esq.,  His  Majesty's  Gov- 
ernor of  New  Hampshire,  in  which  he  acquaints  your 
Lordships  that  the  assembly  of  that  province  have  re- 
fused to  admit  the  representatives  of  five  towns  and  dis- 
tricts, (to  which  he  had  issued  writs  in  His  Majesty's 
name,  to  elect  and  send  members  to  the  assembly,)  to 
sit  and  vote  in  the  choice  of  a  speaker,  and  that  Mr.  Hill 


OF  THE  COLONIAL    CONSTITUTIONS.  273 

is  directed  by  your  Lordships  to  enclose  to  us  an  extract 
of  so  much  of  the  said  letter  as  relates  thereto,  as  also 
papers  therewith  transmitted,  containing  an  account  of 
the  assembly's  proceedings  in  this  affair,  and  a  copy  of 
the  twenty-eighth  article  of  His  Majesty's  instructions 
to  Mr.  Wentworth,  which  relates  to  the  settling  of 
townships,  (all  which  are  herewith  returned,)  and  to 
desire  our  opinion  concerning  this  matter,  and  what  may 
be  proper  for  His  Majesty  to  do  therein.  We  have 
taken  the  same  into  consideration,  and  are  of  opinion 
that  as  the  right  of  sending  representatives  to  the  as- 
sembly was  founded  originally  on  the  commissions  and 
instructions  given  by  the  Crown  to  the  Governors  of 
New  Hampshire,  His  Majesty  lawfully  may  extend  the 
privilege  of  sending  representatives,  to  such  new  towns 
as  His  Majesty  shall  judge  to  be  in- all  respects  worthy 
thereof. 

We  therefore  humbly  submit^  that  it  may  be  advisa- 
ble for  His  Majesty  to  send  positive  instructions  to  the 
Governor  to  dissolve  the  assembly  as  soon  as  conveni- 
ently may  be,  and,  when  another  is  called,  to  send  writs 
to  the  said  towns  to  elect  representatives  and  support 
the  rights  of  such  representatives  when  chosen. 

D.  RYDER. 

March  18,  1747.  W.  MURRAY. 

(4.)  Mr.  Fands  opinion  O'n  the  same  point. 
To  the  Right  Honorable,  the  Lords   Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Gellibrand,  desiring   my  opinion  on  the 
matters  contained  in  the  extract  of  a  letter  from  Mr. 
36 


274  'OPINIONS  OP  EMINENT  LAWYERS. 

Wentworth,  His  Majesty's  Governor  of  New  Hampshire, 
and  in  several  other  papers  relating  to  the  proceedings 
of  the  assembly  of  that  province,  I  have  carefully  read 
over  the  said  extract  of  Mr.  Wentworth's  letter  j  the 
clause  in  the  commission  of  John  Cutts,  Esq,,  dated  the 
8th  day  of  September,  in  the  31st  year  of  King  Charles 
the  Second,  relating  to  the  calling  the  assembly  of  the 
said  province ;  the  clause  in  the  commission  of  Samuel 
Allen,  Esq.,  Governor  of  the  said  province,  in  the  reign 
of  King  William  and  Queen  Mary,  relating  to  the  said 
assembly  ;  the  38th  clause  of  the  instructions  given  to 
the  said  Governor  Wentworth  in  the  year  1741 ;  the 
copy  of  His  Majesty's  writ  by  which  the  assembly  of 
the  said  province  was  convened,  and  the  sheriff's  return 
thereon ;  and  the  copy  of  the  proceedings  of  the  said 
assembly  from  the  34th  day  of  January,  1744,  to  the 
29th  of  the  same  month  inclusive,  which  were  sent  to 
me,  and  are  herewith  returned  to  your  Lordships.. 

And  I  beg  leave  to  observe  to  your  Lordships,  that, 
as  the  right  of  sending  members  to  the  general  assembly 
of  the  said  province  appears  to  me  to  be  originally 
founded  on  the  said  commission  to  the  said  John  Cutts 
to  be  President  of  the  Council  of  said  province,  by  which 
commission,  as  well  the  persons  who  are  to  choose  such 
deputies,  as  the  time  and  place  of  their  meeting,,  are  left 
to  the  discretion  of  the  said  President  and  Council :  and 
as  by  the  commission  granted  by  King  William  and 
Queen  Mary  to  Samuel  Allen,  Esq.  to  be  Governor  and 
Commander-in-  Chief  of  the  said  province,  the  assembly 
of  the  freeholders  thereof  is  directed  to  be  called  in  such 
manner  and  form  as  the  said  Governor,  by  the  advice 
of  the  Council,  shall  find  most  convenient  for  His  Ma- 
jesty's service,  which  powers  of  the  said  Governor  and 


OF  THE  COLONIAL  CONSTITUTIONS.  275 

Council  do  not  appear  to  me  to  have  been  taken  away 
or  abridged,  I  am  of  opinion  that  the  Governor  and 
Council  of  the  said  province,  for  the  time  being,  may  by 
His  Majesty's  writ  command  the  sheriff  of  the  said 
province  to  make  out  precepts,  to.be  directed  to  such 
towns,  parishes  and  districts,  within  the  same,  as  they, 
the  said  Governor  and  Council,  shall  think  fit,  requiring 
them  to  elect  and  send  fit  persons,  duly  qualified  to  re- 
present such  towns,  parishes  and  districts  in  the  general 
assembly  of  the  said  province. 

And  it  likewise  appears  to  me,  that  the  several  prece- 
dents offered  by  the  assembly  of  the  said  province,  in 
support  of  the  rights  being  in  the  said  house,  or  general 
court,  to  grant  the  privilege  to  towns  or  parishes,  to  send 
representatives  to  sit  in  the  general  assembly,  do  not 
sufficiently  prove  or  make  out  such  a  right,  most  of  them 
being  cases,  where  such  right  was  granted  by  His  Ma- 
jesty's charter,  and  confirmed  by  act  of  the  assembly, 
assented  to  by  the  Governor  and  council ;  and  any  mod- 
ern instance  of  the  assembly  alone  taking  on  themselves 
to  grant  such  a  privilege,  appearing  to  me  a  high  en- 
croachment on  His  Majesty's  prerogative,  and  tending 
manifestly  to  vest  the  whole  government  of  the  prov- 
ince in  the  general  court,  or  house  of  representatives. 

And,  as  it  is  represented  in  Governor  Wentworth's 
letter  that  the  five  towns,  or  districts,  therein  mention- 
ed,, pay  near  one-fifth  part  of  the  provincial  tax,  it  seems 
to  me  that  the  said  Governor  acted  properly,  in  direct- 
ing the  said  towns  to  elect  and  send  representatives  to 
the  general  assembly ;  and  that  the  assembly  have  act- 
ed arbitrarily  and  illegally  in  excluding  such  members, 
before  they  proceeded  to  the  choice  of  a  speaker. 

But,  in  order  that  no  doubt  may  remain  concerning 
the  right  of  the  said  towns  to  send  such  representatives, 


276  OPINIONS  OF  EMINENT  LAWYERS. 

and  as  it  may  hereafter  be  necessary  to  empower  other 
towns  to  do  the  like,  pursuant  to  the  38th  article  of  the 
said  Mr.  Wentworth's  instructions  for  the  settling  new 
townships,  who  are  to  have  and  enjoy  all  the  immunities 
and  privileges  as  do" of  right  belong  to  any  other  parish, 
or  township,  within  the  said  province>  J  apprehend  it 
may  be  expedient  for  His  Majesty,  in  case  it  shall  be 
his  royal  pleasure  so  to  do,  to  make  some  new  establish- 
ment concerning  such  elections,  which,  I  conceive,  may 
be  done  by  sending  instructions  to  the  Governor  of 
the  said  province,  thereby  empowering  the  said  towns> 
and  districts,  and  also  any  other  new  townships  to  be 
settled  within  the  said  province,  pursuant  to  the  afore- 
said article,  under  such  restrictions  as  His  Majesty  in 
his  royal  wisdom  shall  think  fit,  to  choose  and  send  re- 
presentatives to  sit  in  the  said  assembly,  or  general 
court,  and  directing  the  said  Governor  to  issue  proper 
writs  and  precepts  for  that  purpose,  which  instructions,  I 
am  of  opinion,  His  Majesty,  in  case  he  shall  so  think  fit, 
may  accordingly  send  to  the  said  Governor  lawfully  and. 
consistently  with  the  constitution  of  the  said  province. 

FRAN.  FANE. 
July  1,  1746. 

(5.)  The  opinion  of  the  Attorney  and  Solicitor-Gen- 
'eral,  Ryder  and  Murray,  on  the  same  point, 

CASE. — On  the  28th  of  November,  1746,  an  act  was 
passed  in  His  Majesty's  province  of  North  Carolina,  en- 
titled "  an  act  for  the  better  ascertaining  the  number  of 
members  to  be  chosen  for  the  several  comities  within 
this  province,  to  sit  and  vote  in  general  assembly,  and 
for  establishing  a  more  equal  representation  of  all  His 
Majesty's  subjects,  in  the  house  of  burgesses." 

The  preamble  of  this  law  sets  forth,  that  the  inhabit- 


OF  THE  COLONIAL  CONSTITUTIONS.  277 

ants  of  the  several  northern  counties  had  assumed  to 
themselves  the  privilege  of  choosing  five  perso'ns  to  re- 
present them  in  general  assembly,  without  any  pretence 
for  such  claim,  while  those  of  the  southern  and  western 
counties,  who  are  more  numerous,  and  contribute  much 
more  to  the  general  tax,  were  represented  only  by  two 
members,  which  irregularity  had  been  attended  with 
great  inconvenience ;  and  therefore  directs,  that  every 
county  already  erected  or  to  be  erected,  shall,  for  the 
future,  choose  two  representatives  to  sit  in  general 
assembly,  and  that  fourteen  members  shall  constitute  a 
quorum  of  the  assembly. 

This  act  having  been  transmitted  to  the  Lords  Com- 
missioners for  Trade  and  Plantations  by  Mr.  Johnston, 
late  Governor  of  this  province,  a  petition  was  soon  after 
presented  to  the  King,  on  behalf  of  the  northern  pre- 
cincts or  counties  of  Chowan,  Perquimans,  Pasquotank, 
Currituck,  Berty  and  Tyrrell,  complaining  of  the  said 
Governor,  of  having  passed  the  said  act  in  an  illegal, 
improper  way,  and  praying  to  be  reinstated  in  their  just 
rights  and  privileges. 

This  petition  having  been  referred  by  His  Majesty  to 
the  Lords  of  the  committee  of  Council,  was,  by  their 
Lordships,  referred  to  the  Board  of  Trade  to  consider 
thereof  and  report  their  opinion  upon  it. 

Upon  a  hearing  before  the  Lords  Commissioners  for 
Trade  and  Plantations,  of  the  petitioners,  in  consequence 
of  the  said  reference,  and  it  appearing  that  they  were 
not  able  to  prove  the  allegations  of  their  petition  for 
want  of  evidence,  their  Lordships  made  a  report  to  the 
Lords  of  the  committee  of  Council,  and  submitted^ 
whether  it  would  not  be  proper  that  orders  should  be 
given  to  admit  the  petitioners  to  examine  witnesses  in> 


278  OPINIONS  OF  EMINENT  LAWYERS. 

the  province  in  support  of  the  petition,  as  also  to  allow 
the  like  liberty  to  the  Governor,  to  examine  witnesses 
on  his  part,  and  to  direct  him  to  return  his  answer  to 
the  complaints  contained  in  the  said  petition,  and  to 
transmit  copies  of  the  minutes  of  the  general  assembly, 
and  of  such  other  papers  as  might  be  necessary  for  His 
Majesty's  full  information  in  this  affair. 

In  consequence  of  this  report,  the  Lords  of  the  com- 
mittee of  Council  were  pleased  to  direct,  "  that  a  copy 
of  the  said  petition  of  complaint  should  be  transmitted 
to  Gabriel  Johnston,  Esq.,  Governor  of  the  said  pro- 
vince, requiring  him  to  return  his  answer  thereunto  in 
writing  with  all  convenient  speed ;  and  that  the  com- 
plainants, or  their  agents,  should  be  at  liberty  to  take 
copies  of  all  records,  in  any  of  the  public  offices  in  the 
said  province,  touching  the  matters  complained  of,  as 
the  said  complainants,  or  their  agents,  should  think  ne- 
cessary to  support  the  said  petition  of  complaint ;  and 
that  the  same  should  be  delivered  to  the  complainants, 
or  their  agents,  signed  and  authenticated  in  the  usual 
manner  under  the  seal  of  the  province,  upon  paying  the 
usual  fees  for  the  same;  and  that  free  liberty  should  be 
also  given  to  all  such  persons  as  the  said  complainants, 
or  their  agents,  should  name,  as  also  to  all  such  persons 
as  the  said  Governor  should  name,  to  make  affidavits  be- 
fore the  Chief  Justice  and  Judge  of  the  Court  of  Ad- 
miralty of  said  province,  or  either  of  them,  of  what 
they  knew  touching  the  premises,  particularly  as  to  the 
practice  of  the  said  province  with  regard  to  a  majority 
of  the  assembly  being  present  before  any  business  could 
be  proceeded  upon ;  and  likewise  with  regard  to  the 
number  of  representatives  sent  by  each  of  the  northern 
counties  to  the  general  assembly  from  the  year  1696  to 


OP    THE    COLONIAL    CONSTITUTIONS.  279 

the  year  1746 ;  and  that  such  Chief  Justice,  or  Judge 
of  the  Admiralty  Court,  or  either  of  them,  should  sum- 
mon before  him  or  them,  such  persons  as  the  complain- 
ants, or  their  agents,  should  name,  as  likewise  such  as 
the  said  Governor  should  name,  and  take  their  affidavits, 
and  examine  them  upon  such  interrogatories  as  should 
be  exhibited  for  that  purpose,  which  the  said  Governor 
was  to  signify  to  the  said  Chief  Justice  and  Judge  of 
the  Admiralty  Court,  as  soon  as  might  be  ;  and  that  the 
complainants,  or  their  agents,  should  deliver  unto  the 
said  Governor,  copies  of  such  affidavits  or  dispositions  as 
should  be  made  or  taken  in  this  matter  on  their  part ;  as 
also,  that  the  said  Governor  should  deliver  unto  the  said 
complainants,  or  their  agents,  copies  of  his  answer  and 
of  such  affidavits  or  depositions  as  ^hould  have  been 
likewise  made  on  his  part,  within  the  space  of  three 
months  after  the  receipt  of  the  said  order ;  as  also,  that 
within  thirty  days  after  receiving  each  other's  proofs, 
the  said  Governor  should  in  like  manner  exchange  with 
the  said  complainants,  or  their  agents,  the  replies  that 
should  be  made  by  affidavits  or  depositions,  before  they 
were  transmitted,  and  that  the  whole  matter  should  be 
returned  under  the  seal  of  the  said  province,  within  the 
space  of  six  months  from  the  time  that  the  said  order 
should  be  served  upon  the  said  Governor  of  the  province 
of  North  Carolina  ;  and  that  the  said  Governor  should 
transmit  the  minutes  of  the  general  assembly  of  the 
said  province,  in  November,  1746, "  with  the  names  of 
such  members  as  were  present  at  their  first  meeting, 
the  names  of  such  as  were  sworn  in  afterwards,  and  the 
Avhole  number  present  during  the  continuance  of  that 
session,  and  also  attested  copies  of  some  of  the  writs  is- 
sued for  calling  assemblies  antecedent  to  the  year  1736, 


280  OPINIONS    OF    EMINENT    LAWYERS. 

if  the  same  form  had  been  constantly  observed,  and  if 
there  had  been  any  variation  in  the  form  of  those  writs, 
then  to  send  copies  of  such  as  had  so  varied,  and  also 
copies  of  the  returns  of  such  writSj  together  with  a  copy 
of  the  order  of  the  palatine's  court,  in  the  year  1696, 
directing  five  members  to  be  chosen  for  the  northern 
counties,  and  that  the  same  should  be  properly  authen- 
ticated, under  the  seal  of  the  said  province,  and  trans- 
mitted at  the  same  time  with  the  aforementioned  proofs 
and  depositions  ;  whereof  the  said  Governor  of  North 
Carolina,  the  Chief  Justice  and  Judge  of  the  Admiralty 
Court,  and  all  others  whom  it  might  concern,  were  to 
take  notice,  and  govern  themselves  accordingly." 

In  consequence  of  this  order,  the  papers  and  other 
evidence,  thereby^equired  to  be  transmitted,  were  laid 
before  the  Lords  of  the  committee  of  Council,  who  re- 
ferred them  to  the  Lords  Commissioners  for  Trade  and 
Plantations,  with  directions  to  proceed  in  the  examina- 
tion of  this  affair,  and  make  a  further  report  thereupon. 

On  the  30th  of  April,  1750,  their  Lordships  referred 
the  said  act  to  His  Majesty's  Attorney  and  Solicitor- 
General,  together  with  a  copy  of  an  order  of  the  Lords 
of  the  committee  of  Council,  referring  to  their  Lordships 
the  petition  and  representation  of  the  inhabitants  of  the 
northern  counties  against  the  same,  and  all  the  papers 
and  evidence  transmitted,  as  well  in  support  of  the  said 
petition,  as  of  the  proceedings  of  the  Governor  and 
Council  and  Assembly  in  passing  the  said  law,  and  de- 
sired their  opinion,  whether  it  might  be  proper,  consist- 
ently with  the  just  rights  of  the  inhabitants,  and  the 
constitution  of  the  said  province,  to  be  confirmed  by 
His  Majesty. 

On  the   1st- of  December,  1750,  His  Majesty's  Attor- 


OF  THE  COLONIAL  CONSTITUTIONS.         281 

ii  ey  and  Solicitor-General  reported,  "  that  they  had  con- 
sidered the  said  act,  and  had  heard  counsel  for  and 
against  the  same  :  that,  although  the  Governor  of  North 
Carolina  might  certainly  prorogue  the  assembly  to  meet 
at  such  place  and  time  as  he  should  see  proper ;  and, 
although  it  had  not  been,  made  out  sufficiently  to  their 
satisfaction,  that  the  presence  of  a  majority  of  the  whole 
assembly  was  absolutely  necessary  to  the  doing  any 
business,  as  alleged  by  the  petitioners  against  said  act: 
yet  the  act  appeared  to  have  been  passed  by  manage- 
ment, precipitation,  and  surprise,  when  very  few  mem- 
bers were  present ;  and  that  it  is  of  such  a  nature  and 
tendency,  and  has  such  effect  and  operation,  that  the 
Governor,  by  his  instructions,  ought  not  to  have  assent- 
ed to  it  though  it  had  passed  deliberately  in  a  full  assem* 
bly ;  and  that  they  were  of  opinion  that  the  said  act  is 
not  proper  to  be  confirmed." 

The  points  upon  which  the  legality  or  illegality,  the 
propriety  or  impropriety,  of  this  act  depend,  are  :  1. — 
The  right  which  the  inhabitants  of  the  six  northern 
counties  claim  of  sending  five  representatives,  each,  to 
the  general  assembly ;  2.  The  necessity  of  a  majority 
to  constitute  a  quorum  of  the  sssembly  ;  and  3.  The 
manner  in  which  the  act  in  question  was  passed. 

In  order  to  judge  of  the  two  first  of  these  points,  it 
will  be  necessary  to  revert  to  that  period  when  first  an 
assembly  was  constituted  in  this  colony,  and  to  state 
such  regulations  as  have  from  time  to  time  been  made 
with  respect  thereto,  and  by  what  authority  the  several 
places,  which  have  sent  members  to  the  assembly,  have 
been  empowered  so  to  do. 

In  1663,  soon  after  the  grant  made  by  King  Charles 
the  Second,  of  Carolina  to  the  Lords  Proprietors,  they, 
37 


282  OPINIONS  OF  EMINENT  LAWYERS. 

by  a  commission  under  their  hands  and  seals,  erected  all 
that  part  of  the  grant  which  lay  to  the  north-east  of 
Chowan  River,  into  a  separate  and  distinct  county,  by 
the  name  of  Albemarle  County. 

In  1667,  the  proprietors  appointed  Samuel  Stephens 
Esq.  to  be  their  Governor  of  Albemarle  County,  with 
a  power  of  nominating  twelve  persons  to  be  his  council, 
and  to  call  an  assembly  of  twelve  persons,  to  be  chosen 
from  among  the  freeholders,  until  the  county  should  be 
divided  into  parishes,  districts,  or  divisions,  and  then 
each  division,  district,  or  parish,  was  to  send  two  repre- 
sentatives who,  with  the  governor  and  council,  w.ere  to 
form  a  general  assembly. 

In  1669  the  proprietors  of  Carolina  formed  a  model  of 
government  for  the  better  ordering  and  ruling  the  prov- 
ince, commonly  known  by  the  name  of  the  fundamental 
constitutions  of  Carolina. 

By  these  constitutions  it  was  directed  that  a  parlia- 
ment should  be  held  once  in  every  two  years,  to  consist 
of  the  proprietors,  or  their  deputies,  the  landgraves 
and  cassiques,  and  one  freeholder  out  of  every  pre- 
cinct. 

These  constitutions  however  were  never  received  or 
acknowleged  by  the  people";  and,  in  1693,  were  laid  aside 
by  the  proprietors  themselves. 

The  proprietors  again,  in  1679,  framed  a  new  set  of 
fundamental  constitutions,  with  some  little  variation  as 
to  the  succession  of  officers,  and  these  were  sent  to  the 
Governors  of  the  several  districts  in  Carolina,  which 
were  then  three,  viz  :  Albemarle,  Craven  and  Clarendon. 

With  these  fundamental  constitutions,  the  Governor 
of  Albemarle  County  had  instructions  to  issue  writs  to 
the  four  precincts  of  that  county,  requiring  them  to  elect 


OF  THE  COLONIAL  CONSTITUTIONS.  283 

each  five  freeholders,  to  be  their  representatives  in  as- 
sembly, who  were  to  govern  themselves  according 
to  the  rules  laid  down  in  the  fundamental  consti- 
tutions. 

In  1691,  Colonel  Ludwell  was  appointed  Governor  of 
all  Carolina,  with  instructions  from  the  proprietors  to 
call  a  general  assemby  to  consist  of  twenty  members, 
viz  : 

For  Albemarle  County  ...  5 

For  Berkeley  County  ...  5 

For  Colleton  County  ...  5 

For  Craven  County  ...  5 

20 

And  when  any  new  county  was  erected,  and  should 
make  it  appear  that  there  were  forty  freeholders,  inhab- 
itants of  it,  to  have  a  privilege  of  sending  four  members 
to  the  assembly,  and  then  the  whole  to  be  reduced  to 
four  for  each  county. 

The  said  Governor  was  further  directed  by  an  addi- 
tional instruction,  to  appoint  a  deputy-governor  of  North 
Carolina,  if  he  thought  proper  ;  and,  if  he  should  find  it 
impracticable  for  Albemarle  County  to  send  delegates  to 
the  general  assembly,  to  direct  Berkeley,  and  Colleton, 
to  send  seven  each,  and  Craven  six. 

The  same  powers  and  directions  given  to  Colonel  Lud- 
well, were  given  by  the  proprietors  to  Mr.  Smith  and 
Mr.  Archdale,  his  successors  in  the  government  of  Caro- 
lina, in  1693  and  1694,  the  latter  of  whom,  at  a  pala- 
tine's court,  holden  in  1696,  ordered  writs  to  be  issued 
out  to  the  several  precincts  of  the  county  of  Albemarle, 
for  electing  five  burgesses  for  each  precinct ;  and  the 


284  OPINIONS  OP  EMINENT  LAWYERS. 

precinct  of  Pamptico,  without  the  limits  of  Albemarle  to 
the  southward,  in  the  county  of  Archdale,  was  erected 
into  a  county  by  the  name  of  Bath,  and  empowered  to 
send  two  members  to  the  assembly. 

In  1705  Bath  County  was,  by  An  order  of  a  council  of 
the  proprietors'  deputies,  divided  into  three  precincts, 
by  the  names  of  Pamptico,  Wickham  and  Archdale,  each 
of  which  w^re,  by  the  said  order,  empowered  to  send 
two  members  to  the  assembly. 

Some  time  after  this,  the  particular  time  not  appear- 
ing, the  three  aforementioned  counties  were  by  the  suc- 
ceeding Governors  appointed  by  the  proprietors  into 
four  counties,  by  the  names  of  Beaufort,  Hyde,  Craven, 
and  Carteret,  each  of  which  sent  two  members  to  the 
assembly  ;  and  in  1715  two  towns  were  erected  in  the 
southern  district,  by  the  name  of  Bath  Town,  and  Eden- 
ton,  the  first  of  which  w.as  empowered,  by  an  act  of  the 
legislature^  to  send  one  member  to  the  assembly. 

In  the  same  year  an  act  was  passed  in  North  Caro- 
lina, entitled  "an  act  relating  to  the  biennial  and  other 
assemblies,"  which,  directed  that  each  precinct  in  Albe- 
marle county,  viz  :  Chowan,  Perquimans,  Pasquotank, 
and  Currituck,  should  send  five  members  to  the  assem- 
bly, and  every  precinct  in  every  other  county  or  counties 
then  erected  or  thereafter  to  be  erected,  to  send  two ;  but 
this  act  was  repealed  by  His  Majesty's  order  in  council, 
dated  the  21st  day  of  July,  1737, 

In  1722,  a  new  precinct  was,  by  an  act  of  assembly, 
erected  out  of  the  county  of  Albemarle,  called  Berty 
precinct,  and  empowered  to  send  five  members  to  the 
assembly,  as  was  Tyrell  precinct,  in  the  year  1729. 

In  1729  the  Crown  purchased  the  sovereignty  of  both 
Carolines  from  the  proprietors,  and  also  seven-eighths 


OF  THE  COLONIAL  CONSTITUTIONS.  285 

of  the  property  of  the  lands,  which  purchase  was  con- 
firmed by  act  of  parliament,  and,  in  consequence  thereof 
His  Majesty  appointed  a  Governor  of  North  Carolina, 
with  a  power  of  calling  assemblies  according  to  the 
laws  and  usage  of  the  said  province, 

It  appears  from  the  journal  of  the  first  assembly  call- 
ed after  the  Crown's  purchase,  that  the  assembly  con- 
sisted of  forty-one  members,  viz  : 

For  Chowan   precinct         ...  5 

Perquimans         ..         .         .         .         .  5 

"Pasquotank          ,         ,         .         ,         .  5 

Currituck  .....  5 

Berty ,5 

Tyrrell       ......  5 

Beaufort     ......  2 

Hyde          .         /       .         .         .         .  2 

Craven       ......  2 

Carteret     ......  2 

Edenton     ......  1 

Bath  Town          .....  1 

Newbern  1 


41 


.  During  the  administration  of  Governor  Burrington,  the- 
first  Governor,  the  following  precincts  were  erected  in 
the  county  of  Bath  by  the  Governor's  order,  viz ;  New 
Hanover,  Edgecumbe,  Bladen,  and  Qnslow,  the  two  last 
of  which  were  confirmed  by  act  of  assembly  1734. 

In  1733  Gabriel  Johnston  Esq.  was  appointed  Gover- 
nor of  this  province:  and  the  first  assembly  which  met 


286  OPINIONS  OF  EMINENT  LAWYERS. 

after   his   arrival   was   composed   of    forty-nine   mem- 
bers, viz: 

For  Chowan       '.  '!         '  /      .         .*;  5 

Perquimnas         .  '."  .  .  .  '  .^/      V  5 

Currituck  ".'.  ,M  '„"  £p    '*!''  5 

Pasquotank  *,  ~  .         :  ...  5 

Berty        V  'V  ''"';"'  J('J.  '.       V"  5 

Tyrrell       .         /  '  ;'*  ''  V?  T?rt<    'i  '  5 

Beaufort     .         .  .                  .         .  2 

Hyde          .         .  '•' $*  r*ft<  «'  -    -^O  2 

Craven                ;                          jr;?  r:fi!ii  2 

Carteret                                 i         pff  '>''(&*  2 

Edgecumbe  ;                         ''?'  2 

New  Hanover                                ^         .  2 

Bladen                 :  s         .-         ;       H'>-  2 

Onslow                .  ;         .         .      k-r.  2 

Edenton               .  ;         ;         .  1 

Bath  Town         .  .- '       .         .        '<;>  1 

Newbern             .  .         .                 .  1 

49 

In  1736  the  writs  issued  by  the  Governor  for  calling 
assemblies,  which  before  that  time  directed  the  north- 
ern counties  to  send  each  five  members,  were  altered, 
and  they  were  directed  to  send  not  any  particular  num- 
ber, but  representatives  only,  in  general  words. 

During  the  administration  of  Governor  Johnston, 
part  of  Berty  County  was,  by  an  act  of  assembly,  erect- 
ed into  a  separate  county,  by  the  name  of  Northampton, 
and  empowered  to  send  two  representatives  to  the  as- 
sembly; and  the  same  act  directed  that  Berty  county, 
for  the  future,  shall  send  but  three ;  and  at  the  same 


OF  THE  COLONIAL  CONSTITUTIONS.  287 

time  Edgecumbe  county,  which  had  been  erected  by  Gov- 
ernor Burrington  and  had  sent  two  members  to  the  as- 
sembly, was  confirmed  in  that  privilege  by  act  of  as- 
sembly. 

In  1739  the  town  of  Wilmington  was  erected  by  act, 
and  empowered  to  send  one  representative  to  the  assem- 
bly ;  and,  1746,  a  little  before  the  passing  of  the  act  in 
question,  two  other  counties  were  erected  by  act  of  as- 
sembly, in  the  southern  district,  called  Granville  and 
Johnson,  and  empowered  to  send  each  two  representa- 
tives. 

From  the  foregoing  state  therefore  it  appears  that  at 
the  time  of  passing  this  act,  the  province  was  divided 
into  seventeen  counties  and  four  towns ;  that  four  of 
these  counties  in  the  county  of  Albemarle,  viz  :  Chowan, 
Perquimans,  Pasquotank,  and  Currituck,  had,  from  the 
first  establishment  of  an  assembly,  chosen  each  five 
representatives,  and  the  other  two  in  the  same  county, 
viz  :  Berty  and  Tyrrell,  had  been  empowered  by  the 
acts  by  which  they  were  erected,  to  send  the  like  num- 
ber, until  Berty  county  was  limited  to  three  by  the  act 
which  separated  Northampton  from  it,  and  that  the  oth- 
er eleven  counties,  in  the  southern  district,  commonly 
called  Bath  county,  had  never  sent  more  than  two  each. 

Since  the  passing  this  act,  two  other  counties  have 
been  erected  by  act  of  assembly,  in  the  southern  dis- 
trict, by  the  names  of  Dupplin  and  Anson. 

As  to  the  second  point,  viz :  the  necessity  of  a  ma- 
jority to  constitute  a  quorum  of  the  assembly,  it  appears 
by  the  charter  granted  to  the  first  proprietors  of  Caro- 
lina, in  1663,  that  they  had  a  power  of  making  laws, 
with  the  advice,  assent,  and  approbation  of  the  freemen 
of  the  said  province,  or  of  the  greater  part  of  them,  or 


288  OPINIONS  OF  EMINENT  LAWYERS. 

of  their  delegates  or  deputies ;  and  in  a  declaration  soon 
after  published  by  the  proprietors,  setting  forth  the  en- 
couragements to  be  allowed  to  persons  who  should  settle 
in  that  province,  they  declare  that  they  will  empower 
the  major  part  of  the  freeholders,  or  their  deputies  or 
assemblymen,  to  be  by  them  chosen  out  of  themselves, 
to  make  their  own  laws. 

By  the  instruction  given  to  Governor  Stephens,  in 
1667,  to  call  an  assembly,  it  was  declared  that  they 
should  have  a  power  of  ascertaining  their  own  quorum, 
provided  it  was  not  less  than  one-third  of  the  whole 
number.  V 

By  the  fundamental  constitution,  it  is  declared  that 
the  quorum  of  the  parliament  shall  be  one-half  of  the 
number. 

By  the  instruction  given  to  Colonel  Ludwell,  and  to 
his  successors  in  the  government  of  Messrs.  Smith  and 
Archdale,  concerning  assemblies,  they  are  empowered, 
with  the  advice  and  consent  of  the  deputies  of  the  pro- 
prietors, the  landgraves  and  cassiques,  and  the  delegates 
of  the  freemen,  or  the  major  part  of  them,  to  make  and 
ordain  laws,  statutes,  and  ordinances. 

It  does  not  appear,  from  any  books  or  papers  in  the 
Plantation  Office,  what  was  the  regulation  or  usage  with 
respect  to  the  quorum  of  the  assembly  from  the  year 
1694  to  the  year  1715,  when  the  biennial  law  was  pass- 
ed, by  which  it  was  enacted  that  a  quorum  of  the  house 
of  burgesses  should  not  be  less  than  one-half. 

It  is  to  be  presumed  that  this  rule  was  observed 
while  the  act  remained  in  force,  and  it  does  appear  that 
at  the  first  assembly  called  by  Mr.  Burrington,  a  ma- 
jority of  the  members  were  present  the  first  day  of  the 
session ;  and  that  on  the  1st  day  of  January,  1734,  the 


OF  THE  COLONIAL  CONSTITUTIONS.         289 

first  day  of  the  meeting  of  the  first  assembly  called  by 
Mr.  Johnston,  the  succeeding  Governor,  he  adjourned 
them,  on  account  of  there  not  being  a  majority  present. 

As  to  the  third  point,  viz:  the  manner  of  passing  the 
law,  it  appears  by  the  journals  of  the  assembly,  that  the 
assembly  by  which  this  law  was  passed  met  first  at 
Newburn,  on  the  12th  day  of  June,  1746,  and  were 
prorogued  to  the  21st  day  of  November,  to  be  then  held 
at  Wilmington ;  that  they  met  at  Wilmington  on  the 
said  day,  fourteen  members  being  present,  when  the 
bill  now  in  question  was  moved  for,  and  brought  in  and 
•  read,  and  ordered  to  be  sent  to  the  council  the  next  day  ; 
that  on  the  24th  it  was  received  back,  and  read  a  sec- 
ond time,  and  that  it  was  read  a  third  time,  and  passed 
the  next  day. 

This  method  of  proceeding  in  passing  this  act,  is  rep- 
resented by  the  northern  counties  as  a  design  of  the 
government  to  ensnare  and  entrap  them :  the  town  of 
Wilmington,  to  which  the  assembly  was  prorogued,  be- 
ing two  hundred  miles  from  their  habitations,  and  where 
it  was  not  possible  for  them  to  attend,  and  that  the 
fourteen  members  present  were  all  of  the  southern  dis- 
trict, as  well  as  the  council  which  advised  the  Governor 
to  take  this  step, 

The  Governor  of  the  said  province,  in  order  to  show 
the  propriety  and  necessity  of  this  law,  and  to  justify 
his  passing  it,  acquaints  the  Lords  Commissioners  for 
Trade  and  Plantations,  in  a  letter  dated  the  9th  of 
March,  1746,  that  the  northern  counties  having  thirty- 
one  votes  out  of  fifty-four,  and  being  generally  united 
under  the  conduct  of  a  few  designing  meji,  who  found 
their  account  in  keeping  public  affairs  in  confusion,  they 
had  made  the  Governor  and  council  and  the  remaining 
38 


290  OPINIONS  OF  EMINENT  LAWYERS. 

members,  of  no  weight  in  that  legislature  ;  for  they 
could  not  so  much  as  meet  unless  they  thought  fit  to  be 
present,  and  after  they  were  met,  if  they  did  not  like 
any  bill  they  withdrew  privately,  and  then  the  majority 
of  burgesses  being  absent,  no  more  business  could  be 
done,  so  that  the  very  being  of  assemblies  depended  on 
their  whim  and  humor  and  not  on  the  King's  writ  and 
Governor's  proclamation  and  prorogation  :  that  this  was 
no  imaginary  consequence,  but  a  real  effect,  which  had 
happened  more  than  once  within  four  years,  when  he 
had  waited  with  the  council  for  three  or  four  weeks  and 
been  obliged  to  separate  without  doing  any  one  thing ; 
that  when  he  prorogued  the  assembly  in  June,  1746,  ta 
the  middle  of  November  following,  then  to  meet  at  Wil- 
mington, they  entered  into  a  formal  agreement  not  to 
attend,  and  to  engage  as  many  of  the  other  members  as 
they  could  influence  to  stay  at  home. 

Quaere. — Have  all  the  six  counties,  viz  :  Chowanr 
Perquimans,  Pasquotank,  Currituck,  Berty  r  and  Tyrrellr 
or  any  of  them,  or  which  of  them,  a  right  to  elect  five 
representatives,  to  serve  in  the  general  assembly  1- 

Though  the  case  seems  very  carefully  and  accurately 
stated,  we  are  afraid  of  giving  an  official  opinion  upon 
so  important  rights,  where  a  question  has  arisen  upon 
which  the  parties  can  have  an  opportunity  to  be  heard. 
In  general,  as  the  four  counties  first  named  from  the 
first  establishment  of  an  assembly  are  said  to  have 
chosen  each  five  representatives,  and  the  two  counties 
last  named  were  empowered  by  the  acts  of  assembly  by 
which  they  were  created  to  send  each  the  like  number, 
and  Berty  county,  by  a  subsequent  act,  was  limited  to 
three,  we  are  at  a  loss  to  find  out  upon  what  foundation 
an  objection  is  made  to  Berty  county  sending  three,  and 


OP  THE  COLONIAL  CONSTITUTIONS.        291 

the  rest  five  representatives  each. 

Qucere. — Is  a  majority  of  the  representatives  neces- 
gary  to  constitute  a  quorum,  of  the  assembly  ? 

It  does  not  sufficiently  appear  to  us,  that  a  majority 
of  the  representatives  is  necessary  to  constitute  a  quo- 
rum of  the  assembly  ;  such  a  constitution  is  very  ex- 
traordinary, and  liable  to  great  inconvenience. 

Queer e. — Was  the  law  in  question  legally  and  proper- 
ly passed  ? 

Upon  this  question  we  see  no  reason  to  vary  the  opin- 
ion we  gave  by  our  report  of  the  1st  of  December,  1750, 
above  referred  to. 

Quaere. — If  it  should  be  thought  proper  to  repeal  the 
law,  can  the  Crown,  by  virtue  of  its  own  prerogative, 
make  any  alteration,  with  respect  to  the  places  which 
send  representatives  to  the  assembly,  or  direct  what 
number  of  representatives  each  place  should  send ') 

Though  it  may  not  be  advisable  for  the  Crown  to  im- 
peach rights  heretofore  granted  and  enjoyed,  we  think, 
as  the  province  grows  more  peopled  and  cultivated,  the 
King  may  erect  towns  and  counties,  and  give  them  the 
privilege  of  choosing  representatives  ;  and  to  preserve 
the  King's  prerogative,  we  think  it  ought  rather  to  be 
done  in  this  way.  than  by  act  of  assembly. 

Since  this  law  was  passed,  assemblies  have  met  and 
passed  many  laws  for  erecting  courts  of  judicature  and 
justice,  and  many  proceedings  have  been  had,  and  judg- 
ments given,  in  such  courts. 

Qu&re. — If  the  said  law  should  be  repealed,  will  the 
acts  of  assemblies  of  the  said  province,  held  in  conse- 
quence of  the  said  act,  (which  acts  were  subsequent  to 
the  passing  of  the  said  act  of  1746,  but  previous  to  the 
repeal  of  it,)  become  void  and  illegal  by  such  repeal? 


292  OPINIONS  OF  EMINENT  LAWYERS. 

We  apprehend  the  acts  of  the  assembly  are  good  till 
repealed,  and,  consequently,  void  only  from  notification 
of  the  repeal;  but  the  particular  constitution  of  this 
province  is  not  stated  as  to  the  force  of  their  laws,  till 
approved  or  disapproved  by  the  King. 

Quaere. — If  the  said  acts  should,  by  the  repeal  of  the 
act  in  1746,  be  illegal  and  void  ah  initio,  what  method 
will  it  be  proper  for  the  Crown  to  take  to  indemnify 
such  persons,  who  have  acted  under  the  powers  and  au- 
thorities of  such  acts  ? 

This  falls  within  the  answer  to  the  former'  question. 

July  20.  1753.  D.  RYDER. 

W.  MURRAY. 

(6.)  Tlie  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Murray  and  Lloyd,  on  ike  privileges  of  the  Jamai- 
ca AsserMy. 
To  the  Right  Honorable   the  Lords   Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

Pursuant  to  your  Lordship's  desire"  signified  to  us  by 
Mr.  Pownall,  in  his  letter  of  the  15th  instant,  setting 
forth,  that  your  Lordships  having  lately  received  a  let- 
ter from  Mr.  Knowles,  Governor  of  the  Island  of  Jamai- 
ca, in  which  he  acquaints  your  Lordships  with  his  hav- 
ing dissolved  the  assembly  there>  for  calling  in  question 
His  Majesty's  right  of  issuing  writs  for  electing  mem- 
bers to  sit  in  the  assembly,  without  waiting  for  a  mes- 
sage first  from  them  ;  and  inclosing  to  us  an  extract  of 
the  said  letter,  together  with  a  copy  of  the  resolution 
of  the  assembly,  upon  which  that  dissolution  was  found- 
ed, (which  extract  and  copy  are  herewith  refurned);  and 
desiring  our  opinion  whether  the  assembly  were  war- 
ranted in  coming  to  that  resolution,  and  whether  it  be 


OP  THE  COLONIAL  CONSTITUTIONS.  293 

consistent  with  His  Majesty's  rights  and  prerogative  : 
we  have  considered  thereof  and  do  not  think  ourselves 
sufficiently  informed  to  give  an  opinion  upon  the  ques- 
tion so  generally  stated,  because  it  depends  upon  the 
constitution  of  the  assembly  of  Jamaica,  and  the  usage, 
whether,  whilst  the  assembly  is  sitting,  all  vacancies 
should  first  be  signified  by  themselves  to  the  Governor ; 
and  yet  the  case  must  frequently  have  happened.  Noth- 
ing is  transmitted  to  us  relative  to  the  particular  consti- 
tution or  usage  in  Jamaica  upon  this  point,  and  there 
are  no  parties  to  whom  we  could  send  for  information. 

What  the  assembly  claims  seems  analogous  to  the  law 
and  practice  here ;  but  it  does  not  from  thence  necesr 
sarily  follow  that  it  is,  or  ought  to  be,  the  law  there ; 
that  must  depend  upon  their  own  constitution  and  usage, 
which,  without  further  light,  we  cannot  venture  to  give 
an  opinion  upon. 

April  29,  1755.  W.  MURRAY. 

RICH.  LLOYD, 

(7.)     Ihv  opinion  of  the  same  lawyers^  whether  a  per- 
son chosen  into  the  Assembly,  had  a  right  to  sit,  he  hav- 
ing been  convicted  of  a  crime  in  England. 
To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

Pursuant  to  your  Lordships'  desire,  signified  to  us  by 
Mr.  Pownall,  in  his  letter  of  the  25th  instant,  setting 
forth  that  your  Lordships  had  received  a  letter  from 
Mr.  Knowles,  Governor  of  Jamaica,  dated  the  25th  of 
January  last,  acquainting  your  Lordships  with  his  hav- 
ing dissolved  the  assembly  of  that  Island  a  second  time, 
and  containing  his  reasons  for  such  dissolution  (a  copy 
of  which  letter,  and  the  other  papers  inclosed  to  us,  are 


294  OPINIONS    OF  EMINENT  LAWYERS. 

herewith  returned,)  desiring  our  opinion  whether  Mr. 
Dawes,  the  gentleman  mentioned  therein,  by  having 
been  convicted  in  England  of  uttering  treasonable  ex- 
pressions against  His  Majesty,  and  sentenced  to  enter 
into  recognizance  for  his  good  behaviour  for  seven  years, 
is  disqualified  during  that  term  from  being  elected  into, 
or  sitting  in,  the  assembly  of  Jamaica,  he  having  taken 
the  oaths  to  His  Majesty  and  made  and  subscribed  the 
declaration  and  taken  and  subscribed  the  oath  of  abju- 
ration ;  we  have  taken  the  same  into  our  consideration 
and  are  humbly  of  opinion,  that  though  the  said  assem- 
bly might  in  their  discretion  have  expelled  the  said 
James  Dawes,  in  consequence  of  the  said  judgment,  yet 
that  the  same  was  no  legal  objection  to  his  right  or  ca- 
pacity of  sitting. 

April  29.  1755.  W.  MURRAY. 

RICH.  LLOYD. 

(8.)  Ilie  opinion  of  the  Attorney  and  Solicitor-General 
Northey,  and  Harcouri,  how  far  a  representative,  absent- 
ing himself,  may  le  punished. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords  ; 

In  humble  obedience  to  Her  Majesty's  commands  in 
council,  signified  to  us  by  your  Lordships'  secretary,  we 
have  considered  what  method  may  be  proposed  for  pun- 
ishing such  members  of  the  assembly  of  Barbadoes,  as 
wilfully  absent  themselves  from  the  said  assembly,  which 
consisting  of  two  and  twenty,  and  fifteen  being  reputed 
there  to  be  necessary  to  be  present,  eight  of  them  absen- 
ted themselves  voluntarily,  and  thereby  the  proceedings 


OF  THE  COLONIAL  CONSTITUTIONS.  295 

of  the  assembly  have  been  for  a  long  time  obstructed  • 
and  we  do  humbly  report  to  your  Lordships,  that  the  as- 
sembly in  Barbadoes  begun  and  hath  been  continued,  by 
virtue  of  the  commissions  granted  from  time  to  time  to 
the  Governors  of  that  island  by  Her  Majesty's  prede- 
cessors, and  by  Her  Majesty,  whereby  the  Governor  is 
enabled,  by  the  advice  of  Her  Majesty's  council  there, 
to  summon  and  call  general  assemblies  of  the  freehold- 
ers and  planters  there,  and,  with  the  advice  and  consent 
of  the  said  council  and  assembly,  or  the  major  part  of 
them,  to  make  laws  for  the  public  peace,  welfare,  and 
good  government  of  that  island  ;  and  the  number  of  per- 
sons of  the  assembly  being  two  and  twenty,  twelve, 
being  the  majority  of  them,  is  sufficient  to  be  present, 
and  the  appointing  fifteen  to  be  necessary,  which  was 
done  by  an  order  of  the  assembly  as  we  are  informed, 
and  not  by  order  of  Her  Majesty  or  her  predecessors,  or 
by  any  act  of  the  assembly  confirmed  by  Her  Majesty 
or  her  royal  predecessors,  is  irregular,  and  could  not  al- 
ter the  quorum  appointed  by  Her  Majesty's  commis- 
sion. 

As  to  the  case  of  the  absentees,  we  are  humbly  of 
opinion  that  they  being  chosen  and  having  accepted  of 
the  places  and  acting  in  the  assembly  and  wilfully  ab- 
senting themselves  without  any  just  occasion,  to  the  to- 
tal obstruction  of  all  business,  they  are  guilty  of  an 
high  misdemeanor,  in  the  execution  of  of  the  trust  in 
them  reposed,  and  contempt  of  Her  Majesty's  royal  au- 
thority ;  and  there  being  no  power  expressly  lodged  by 
Her  Majesty  in  the  assembly  to  punish  such  offences, 
they  may  be  proceeded  against  in  Her  Majesty's  ordina- 
ry courts  of  justice  there,  and  punished  by  fine  and  im- 
prisonment. 


296  OPINIONS    OP    EMINENT    LAWYERS. 

But  whether  a  prosecution  of  an  assemblyman  in  the 
courts  of  justice  of  that  Island,  without  any  application 
from  the  assembly  to  Her  Majesty  or  her  Governor 
there  for  that  purpose,  may  not  tend  to  Her  Majesty's 
disservice,  by  creating  an  uneasiness  in  the  present  and 
all  future  assemblies,  and  occasion  an  unwillingness  to 
serve  therein,  is  most  humbly  submitted  to  Her  Majes- 


NORTHEY.. 

February  1,  1704-5.  SAM.  HARCOURT. 

\ 

Sir  :  u  '. 

Some  members  of  the  late  assembly  of  Barbadoes 
having  applied  to  me  on  behalf  of  themselves  and  the 
rest  of  the  absenting  members,  and  represented  that  a 
matter  of  fact,  stated  in  the  report  lately  made  by  Mr. 
Solicitor  and  myself,  hath  been  misrepresented,  for  that 
the  said  assembly  hath  power  to  punish  their  own  mem- 
bers, and  therefore,  they  desire  an  opportunity  to  make 
out  the  same  ;  I  am  content  that  the  said  report  may  be 
reviewed  and  altered  as  justice  shall  require,  which  I 
desire  you  to  communicate  to  the  Lords. 

EDW.  NORTHEY. 

February  9,  1704. 

(9.)  Tlie  opinion  of  the  Attorney  -General  De  Grey, 
whether  the  Assembly  of  South  Carolina  could  grant 
money  to  the  Bill  of  Rights  Society. 

Questions  arising  out  of  the  foregoing  state  of  facts, 
and  upon  which  questions  the  opinion  of  Attorney-Gen- 
eral is  desired  are  : 

Whether,  under  the  circumstances  above  mentioned, 
the  commons  house  of  the  assembly  of  South  Carolina 


OF  THE  COLONIAL  CONSTITUTIONS.        297 

can,  or  ever  could,  legally,  by  an  order  of  that  house 
alone,  not  concurred  in  by  the  other  two  branches  of  the 
legislature,  appropriate  to  specific  public  purposes,  any 
sums  of  money  for  such  public  purposes  of  the  colony  as 
the  said  commons  house  of  general  assembly  might  think 
fit ']  If  this  question  is  answered  in  the  affirmative, 
then  question  whether,  under  the  above  mentioned  cir- 
cumstances, the  foregoing  order  of  the  said  commons 
house  of  assembly,  on  the  8th  of  December  last,  for  the 
purpose  therein  mentioned  vand  thereby  intended,  is 
warranted  by  law  and  the  constitution?  If  not,  what 
remedy,  in  either  of  the  cases  stated,  can  be  legally  and 
constitutionally  applied  in  a  matter  of  so  great  import- 
ance to  His  Majesty's  government  and  the  future  well- 
being  and  security  of  the  colony  of  South  Carolina  ? 

1st.  I  am  of  opinion,  that  the  house  of  assembly  of 
South  Carolina  cannot,  by  the  constitution  of  that  colo- 
ny, without  the  concurrence  of  the  governor  and  council, 
legally  direct  the  treasurer  of  the  colony  to  issue  out  of 
the  balance  or  surplus  of  funds  arising  from  taxes  grant- 
ed to  the  King,  and  appropriated  by  the  legislature  of 
the  colony  to  certain  public  services,  any  sums  of  mon- 
ey for  such  other  public  purposes  of  the  colony  as  the 
house  of  assembly  shall  alone  think  fit.  Such  a  power 
would,  as  I  conceive,  be  contradictory  to  the  first  and 
fourth  articles  of  the  commissions  and  instructions,  re- 
pugnant to  the  nature  of  the  grant  by  which  the  surplus 
must  remain  disposable  by  the  same  authority  which 
raised  it,  and  cannot,  I  think,  be  warranted  by  the  mod- 
ern practice  of  a-  few  years,  irregularly  introduced  and 
improvidently  acquiesced  in. 

2d.  I  think  the  order  of  the  assembly,  of  the  8th  of 

December  last,  is  not  to  be  supported  in  point  of  law  : 
39 


298  OPINIONS    OP  EMINENT    LAWYERS. 

not  only  as  they  cannot,  in  my  opinion,  legally  issue  the 
public  treasure  by  their  sole  authority,  but  as  the  sum 
is  directed  to  be  paid  out  of  any  money  in  the  treasury, 
without  regarding  the  payment  of  the  appropriations 
mentioned  in  the  act  of  assembly  ;  and  as  it  is  to  be  ap- 
plied not  to  the  particular  service  of  the  colony  and  the 
support  of  the  government  thereof,  but  to  be  remitted 
to  Great  Britain,  for  the  vague  and  indefinite  purpose  of 
supporting  the  rights  and  liberties  of  Great  Britain  and 
America,  to  be  ascertained,  by  the  arbitrary  pleasure  of 
seven  particular  persons,  and  without  any  immediate  re- 
ference to  the  service  of  that  colony. 

3d.  If  the  order  of  payment  of  the  money  is  not  war- 
ranted by  law,  the  payment  cannot  be  legal,  and  the 
treasurer  has  issued  the  money  without  authority  ;  but 
it  would  be  hard,  after  the  late  acquiescence  in  the  or- 
ders of  the  assembly,  to  make  the  treasurer  liable  to  the 
consequences  of  a  wrong  payment. 

What  preventive  measures  for  the  future  may  be  most 
conducive  to  the  service  of  the  colony  and  of  His  Majes- 
ty's government  and  to  protect  the  subject  from  the  rep- 
etition of  such  exactions  whether  by  the  parliament  here, 
or  by  instructions  to  the  Governor ,.  must  be  submitted 
to  the  wisdom  of  His  Majesty's  servants. 

WM.  DE  GREY. 

February  13,  1770. 


OF  THE  COLONIAL  CONSTITUTIONS.         299 

(10.)  Sweral  opinions  on  the  act  of  the,  Maryland  As- 
sembly, "for  the  establishment  of  religions  worship,  accord- 
ing to  the  Church  of  England?  Tfie  following  facts  may 
be  premised,  as  the  case :  King  William  deceased  on  the 
8th  of  March,  1701-2;  the  Assembly,  which  was  thereaf- 
ter called  in  tkc  usual  manner,  met  on  the  17th  of  the  same 
month,  and  during  its  sitting  jjassed  the  act  in  question, 
without  the  possibility  of  knowing  that  such  an  event  had 
taken  place.  Governor  Seymour,  the  successor  of  Governor 
Blackstonc  who  summoned  the  assembly,  upon  his  arrival, 
on  the  lltk  oj  April,  1704, found  the  same  Assembly  exist- 
ing that  had  been  called  by  his  predecessor  in  the  name  of 
King  William  :  so  that  there  were  three  several  sessions  of 
Assembly  held  after  the  demise  of  King  William,  to  wit,  in 
Jane  1802,  in  October,  1703,  and  in  April  1704. 

First. — The  opinion  of  Mr.  Holly  day,  an  eminent  law- 
yer of  Maryland,  on  this  subject  : 

King  William  died  the  8th  day  of  March,  in  the  year 
of  our  Lord  1701.  On  the  16th  day  of  the  same  month, 
an  assembly  met,  under  Governor  Blackstone,  and  con- 
tinued until  the  25th  of  the  said  month ;  in  which  was 
made  the  act  for  the  establishment  of  religious  worship 
in  this  province  according  to  the  Church  of  England  and 
for  the  maintenance  of  ministers.  Two  questions  con- 
cerning this  act  have  lately  been  stirred;  whether  the 
act  be  in  force  ;  if  it  be,  whether  the  Sheriffs  can  exe- 
cute for  the  forty  pounds  of  tobacco  per  poll,  establish- 
ed by  the  act  for  the  maintenance  of  ministers. 

The  objection  to  the  validity  of  the  act  I  take  to  be 
founded  on  the  fact  of  the  King's  demise,  whereby  it  is 
supposed  that  the  assembly  was  dissolved,  and  therefore 
the  act  made  by  persons  having  no  legislative  powers. 


300  OPINIONS  OF  EMINENT  LAWYERS. 

I  am  of  opinion,  that  the  aforesaid  act  is  in  force.  If 
the  objection  drawn  from  the  demise  of  the  King  can 
be  obviated,  and  it  can  be  shown  that  the  act  had  the 
validity  of  the  law  when  it  was  made,  I  conceive  it  will 
follow,  that  it  is  still  in  force  ;  there  is  no  limitation  of 
its  continuance  in  point  of  time,  it  is  therefore  a  perpe- 
tual law,  and  I  do  not  know  that  it  has  been  repealed 
by  any  subsequent  act. 

At  the  time  of  the  King's  death  his  Governor  here 
was  acting  under  his  commission,  in  consequence  of 
which,  he  was  invested  with  the  royal  authority,  had 
power  to  call,  prorogue  and  dissolve  assemblies,  assent 
to  laws,  and  to  exercise  the  other  functions  of  the  royal 
capacity  within  this  province  ;  and  I  apprehend,  that  so 
long  as  that  commission  remaineth  in  force,  all  acts  done 
by  virtue  of  the  powers  derived  from  its  words,  are 
good  and  valid.  I  have  no  doubt  but  that  b-y  the  de- 
mise of  the  King,  all  commissions  granted  by  him  du- 
ring pleasure  would  have  determined,  unless  provided 
for.  But  by  an  act  of  parliament  made  in  the  seventh 
year  of  his  reign,  cap.  27;  it  was.  amongst  other  things, 
enacted,  that  no  commission,  either  civil  or  military, 
should  cease,  determine,  or  be  void,  by  the  death  or  de- 
mise of  his  said  Majesty,  or  of  any  of  his  heirs  or  suc- 
cessors, Kings  or  Queens  of  England  ;  but  that  every 
such  commission  should  be  continued  and  remain  in  full 
force  for  the  space  of  six  months  next  after  such  death 
or  demise,  unless  in  the  mean  time  superseded  by  the 
next  immediate  successor.  And,  by  an  act  made  in  the 
first  year  of  Queen  Anne  by  the  parliament  that  was 
sitting  when  the  King  died,  and  in  "that  same  session,  it 
was  enacted  that  all  and  singular  the  provisions,  clauses, 
matters,  to  things  whatever,  contained  in  the  above  re- 


OP  THE  COLONIAL  CONSTITUTIONS.  301 

cited  part  of  the  act,  of  7  W.  III.  should  extend,  and  be 
construed  to  extend,  to  the  kingdom  of  Ireland,  to  the 
Islands  of  Jersey  and  Guernsey,  and  to  all  His  Majesty's 
dominions  in  America,  and  elsewhere.  By  these  pro- 
visions, the  Governor's  commission  was  in  full  force  at 
the  time  of  making  the  act  in  question;  it  did  not  cease, 
or  determine,  by  the  demise  of  the  King;  for,  if  the 
general  words  of  the  act  of  7  W.  III.  did  not  extend  to 
commissions  in  the  plantations,  they  were  undoubtedly 
extended  to  them  by  act  of  Queen  Anne,  which,  by  ex- 
press provision,  was  to  have  its  operation  and  com- 
mencement on  the  8th  day  of  March,  on  which  day  the 
King  died,  so  that  there  was  no  interval  of  time  be- 
tween the  death  of  the  King  and  the  making  of  the 
act  here,  in  which  the  Governor's  commission  was  not  in 
full  force.  And  I  am  of  the  opinion,  it  will  follow  from 
hence  as  a  necessary  consequence,  that,  by  the  demise  of 
the  King,  the  assembly  of  this  province  was  not  dis- 
solved ;  for  the  reason  why,  by  the  death  of  a  King,  the 
parliament  was  dissolved  (until  the  case  was  provided 
for  by  the  statute,)  was,  that  he  being  considered  in  law 
as  the  head  of  the  parliament,  that  failing,  the  whole 
body  was  extinct.  But  the  reason  does  not  subsist  in 
this  case,  for  the  politic  capacity  of  the  King,  in  which 
only  he  can  be  said  to  be  the  head  of  the  parliament,  was 
still  residing  in  his  Governor  here,  as  fully  as  it  had 
been  at  any  time  during  his  life ;  the  [Governor's  com- 
mission was  from  the  King,  that  commission  was  in  full 
force,  he  was  invested  with  all  the  powers  derived  from 
it  originally,  amongst  which,  that  of  legislation,  calling 
assemblies,  and  assenting  to  laws,  was  one.  The  Crown, 
whilst  the  government  was  in  its  hands,  and  the  Propri- 
etaries, in  the  time  of  their  administration,  have  exer- 


302  OPINIONS  OF  EMINENT  LAWYERS. 

cised  a  power  of  dissenting  to  laws  passed  here  by  their 
Governors  :  but  I  have  never  understood,  that  the  as- 
sent of  the  Crown,  or  Proprietary,  was  thought  necessa- 
ry to  the  validity  of  an  act  of  assembly  to  which  the 
Governor  had  given  his.  assent,  such  act  having,  to  every 
purpose  the  force,  and  obligation  of  a  law,  unless  dissent- 
ed to  by  the  Crown,  or  Proprietary  ;  and  I  think,  that 
this  being  the  case,  it  may  fairly  be  inferred  that  the 
Governor  here,  acting  under  a  commission  from  the 
Crown,  stood  in  the  same  relation  to  the  other  branches 
of  our  legislature,  as  the  King  does  to  the  other  branches 
of  the  parliament ;  that  he  must  be  considered  as  the 
head  of  the  assembly,  in  the  same  light  as  the  King  is 
of  the  parliament ;  and  that,  therefore,  the  legislature  of 
this  province  remained  complete  and  perfect  notwith- 
standing the  demise  of  the  King  :  nor  will  it  follow  from 
this  reasoning,  that,  by  the  death  of  the  Governor,  the 
assembly  would  be  dissolved,  because  the  powers  of  a 
Governor,  though  perfect  and  complete  whilst  they  con- 
tinue, are  but  delegated  and  derived  from  a  superior,  to 
whom  they  result  immediately  on  the  death  of  the  Gov- 
ernor, 

I  have  heard  of  an  objection  drawn  from  the  style  of 
this  act,  "  it  is  enacted  by  the  King's  most  excellent 
Majesty,  &c."  but  I  think  this  objection  is  of  little  weight : 
the  King  is  here  named  in  his  royal  and  politic  capaci- 
ty, which,  at  the  time  of  making  the  act,  it  was  to  this 
purpose  residing  in  his  Governor,  who  then  enjoyed  and 
exercised  the  functions  of  it  in  this  province  ;  and  the 
personal  assent  of  the  King  was  not  necessary  to  the 
act.  Further,  this  act  has  always  been  allowed  aiid  re- 
ceived for  a  law  :  the  401bs.  of  tobacco  per  poll  has  al- 
ways been  collected  by  virtue  of  it ;  and  parish  assess- 


OF  THE  COLONIAL  CONSTITUTIONS.  303 

ments  for  a  long  time  made  under  it  ;  the  being  and  au- 
thority of  the  vestries  for  seventy  years  past  have  been 
derived  from  it  ;  many  duties  are  required  of  these  by 
subsequent  acts  ;  and  some  share  of  our  civil  polity  de- 
pends upon  the  existence  of  it ;  k  was  expressly  except- 
ed  out  of  the  general  repeal  in  1704  and  has  been  re- 
ferred to  and  made  the  ground- work  of  many  later  acts 
of  assembly.  This  long  uninterrupted  allowance,  and 
frequent  recognition  of  the  validity  of  it,  leave  no  room 
to  doubt  of  the  uniform  sense  of  the  people  and  opinion 
of  the  legislature  with  respect  to  its  existence,  and  fur- 
nishes a  strong  argument  against  questioning  the  force 
of  it  at  this  time  of  day. 

As  to  the  second  question  :  By  the  act  of  1702,  sect. 
3,  for  the  encouragement  of  faithful  and  able  ministers, 
laboring  in  the  work  of  the  gospel,  to  come  and  reside 
in  this  province  ;  it  is  enacted,  that  a  tax  or  assessment 
of  401bs.  of  tobacco  per  poll,  be  yearly,  and  every  year 
successively,  levied  upon  every  person,  &c.  and  paid  to 
the  minister,  &c.  And  the  act  directs,  sect.  6,  that,  for 
the  better  and  more  effectual  collecting  of  the  duty  of 
401bs.  of  tobacco  per  poll  and  paying  the  same  to  the 
uses  intended  and  appointed  by  the  law,  the  sheriff  of 
the  county  shall,  and  is  obliged,  to  collect  and  gather 
the  said  assessment  of  the  several  persons  within  each 
respective  parish,  in  the  same  manner,  and  by  the  same 
authority,  as  the  public  and  county  levies  are  collected, 
and  shall  pay,  &c.  It  could  scarce  be  imagined,  that  a 
minister,  who  had  a  comfortable  establishment  in  Eng- 
land, would  be  induced  to  come  over  to  this  province 
for  the  sake  of  the  provision  made  by  this  act.  Those 
who  should  come,  it  might  be  expected,  would  be  such 
as  from  their  circumstances  must  depend  on  their  sala- 


304  OPINIONS    OF     EMINENT     LAWYERS. 

ry  for  the  support  of  themselves  and  their  families. 
Hence  a  necessity  that  this  should  be  annually  collected 
and  paid,  and  that  some  power  should  be  placed  in  the 
hands  of  the  sheriff  who  was  to  collect  and  gather  the 
401bs.  of  tobacco  per  poll,  by  which  he  might  in  a  spee- 
dy and  summary  way  enforce  the  payment  of  it ;  and  I 
have  no  doubt  but  that  this  was  done  and  that  the  sher- 
iffs had  power  to  execute  for  it  The  act  does  not,  in- 
deed, in  express  words  give  a  power  ;  but  the  sheriff  is 
obliged  to  collect  and  gather  in  the  same  manner  and 
by  the  same  authority,  as  public  and  county  levies  were 
already  collected.  The  words  are  in  the  same  manner; 
and  by  the  authority,  have  a  plain  reference  to  the  mode 
of  collecting,  i.  e.  compelling  the  payment  then  in  use 
and  practice,  which  was  clearly  by  way  of  execution,  or 
to  some  law  then  in  being  which  pointed  out  a  mode  of 
compelling  payment,  or  to  both.  I  have  met  with  no  law 
which  does  originally  and  expressly  give  a  power  of  ex- 
ecuting for  public  and  county  levies,  or  point  out  any 
mode  of  compelling  payment.  If  such  an  one  can  be 
found  to  have  been  existing  when  the  act  of  1702  was 
made,  it  might  perhaps  put  an .  end  to  this  question. 
If  there  was  no  such  law  in  being,  the-  mode  referred  to 
jciust  be  the  usage  and  practice  of  the  time. 

The  act  of  1699,  of  directions  for  the  sheriff's  office, 
which  was  a  perpetual  law,  and,  I  apprehend,  continued 
in  force  until  it  was  re-enacted  in  1704,  does  plainly 
prove  the  mode  then  in  use  and  practice,  to  have  been 
by  execution.  It  restrains  the  sheriffs  from  seizing  to- 
bacco unstripped,  or  marked  for  merchants,  or  others, 
for  any  cause  except  levies,  and  gives  him  a  power  to 
break  locks  in  order  to  seize  tobacco  for  public  levies. 
This  law  was  again  re-enacted,  so  far  as  concerns  the 


OP  THE  COLONIAL  CONSTITUTIONS.  305 

present  question,  with  some  addition  in  1715,  cap.  46, 
a  perpetual  law  now  in  force,  by  which  the  sheriffs  are 
restrained  from  seizing  tobacco  unstripped,  &c.  for  any 
cause  except  levies  due  to  the  public,  county  or  parish, 
or  for  the  401bsi  of  tobacco  per  p»ll  to  the  minister ;  and 
he  is  empowered  to  break  locks  in  order  to  seize  tobac- 
co for  levies  and  dues  as  aforesaid. 

In  1699,  the  law  of  1702  not  being  made,  the  excep- 
tion was  confined  to  levies.  In  1715,  it  includes  the 
401bs.  of  tobacco  per  poll  to  the  minister,  because  that 
was  to  be  collected  and  gathered  in  the  same  manner. 
And  by  sect.  5  of  this  act  the  sheriff  shall  not  levy  by 
way  of  execution  any  public  dues,  or  officers'  fees,  upon 
the  body,  goods,  or  chattels,  of  any  inhabitant,  except 
he  has  made  a  demand  thereof,  at  or  before  the  20th 
day  of  February.  The  401bs.  of  tobacco  per  poll  is  here 
omitted,  and  I  conceive  with  design,  because  every  man 
might  know  without  demand  what  he  was  to  pay  the 
minister.  By  the  act  of  1723,  cap.  16,  fines  for  breaches 
of  this  law  are  to  be  levied  by  the  sheriff,  by  way  of 
execution,  as  other  public  dues  are  to  be  levied.  By 
the  act  of  1724,  cap.  21,  no  sheriff  shall  be  allowed  any 
fee  or  reward  for.  executing  for  any  public  or  county 
levies  or  any  public  dues  or  officers'  fees.  This  act  re- 
cites, that  several  sheriffs,  to  increase  fees  to  themselves, 
had  executed  several  persons  for  public  and  county  lev- 
ies and  officers'  fees,  and  had  charged  execution  fees 
thereon ;  and  that  the  power  of  execution  ought  not  to 
be  used  in  oppression  of  the  people,  but  only  to  enable 
the  sheriff  to  collect  the  public  dues  and  officers'  fees 
with  greater  facility.  Usage  is  said  to  be  one  of  the  best 
expounders  of  a  law:  the  usage,  in  this  case,  is  not  on- 
ly proved  by  the  acts  of  assembly  above  referred  to,  which 
40 


306  OPINIONS  OP  EMINENT  LAWYERS. 

at  the  same  time  that  they  evince  the  fact,  shew  the 
sense  of  the  legislature  with  respect  to  the  legality  of 
it,  but  might  be  appealed  for  to  the  experience  of  every 
man  in  the  county  who  lived  and  was  conversant  in  busi- 
ness. Before  the  inspection  law  of  1747  took  place,  the 
sheriffs  used  to  execute  body  or  goods,  as  he  thought 
most  effectual  for  obtaining  payment. 

To  draw  this  matter  into  a  narrow  compass,  the  terms 
tax,  assessment,  levy,  as  used  in  the  act,  convey  an  idea 
of  something  compulsory.  The  sheriffs,  by  the  act,  are 
obliged  to  collect  this  tax  and  to  pay  it  annually.  The 
purposes  to  which  it  is  applied,  required  that  it  should 
be  annually  collected  and  paid.  A  compulsory  power, 
therefore,  in  the  hands  of  the  sheriff,  was  necessary  to 
enable  him  to  discharge  this  obligation :  the  law  plainly 
intended  to  give  him  a  compulsory  power.  Of  what  na- 
ture was  it?  [  conceive,  for  the  reasons  assigned, 
a  power  to  execute  body  or  goods,  as  should  be  most 
conducive  to  the  end  and  purposes  of  the  power. 

JAMES  HOLLYDAY. 
August  1,  1772. 

Second. 

Sketches  of  an  argument  on  tliis  subject,  by  Mr.  Dan- 
iel Dulany,  one  of  the  ablest  lawyers  which  America 
ever  produced ',  after  lie  had  retired  from  the  bar. 

Queer e. — Whether  the  validity  of  the  act  of  1701  may 
not  be  asserted  on  the  principles  of  the  common  law, 
though  the  Governor's  commission  determined  on  the 
royal  demise,  inasmuch  as  the  meeting  of  the  assembly 
and  passing  the  act  were  agreeable  to  the  commission 


OP  THE  COLONIAL  CONSTITUTIONS.  307 

while  in  force,  aud  happened  before  notice  of  the  royal 
demise  ? 

Defendant  in  assize  pleaded  a  recovery  before  commis- 
sioners of  oyer  and  terminer  of  damages,  wherein  one 
moiety  of  the  land  demanded  was  on  eligit  taken  into 
execution  &c.  The  plaintiff  replied,  that  after  the  said 
commission,  and  before  judgment,  another  commission 
issued.  &c.  Fish  prayed  judgment,  because  the  plaintiff 
did  not  allege  that  the  first  commissioners  had  notice 
before  judgment  of  the  second  commission ;  because, 
though  the  second  commission,  when  executed,  has,  to 
some  purposes,  relation  to  the  date,  yet  the  acts  done 
under  the  first,  before  notice,  were  good. — So  adjudged, 
34th  As.  PI.  8. 

Under  a  commission  to  examine  witnesses,  the  com- 
missioners began  the  examination  the  28th  of  March, 
1625,  the  day  after  King  James's  demise,  but  before  no- 
tice of  it.  Agreed,  the  commission  was  determined  by 
the  royal  demise,  without  any  notice ;  but  held  that  the 
proceedings  before  notice  were  good,  and  that  the  wit- 
nesses, if  perjured,  might  be  punished,  because  examina- 
tion before  notice  of  the  royal  demise  was  legal.  Crow 
v.  Vernon.  Cro.  Car.  97.  in  which  Lib.  Ass.  is  refer- 
red to. 

An  attachment  sued  out  in  the  time  of  Car.  II.  and 
executed  at  Exeter  three  days  after  his  demise,  but  be- 
fore notice  of  it,  held  to  be  good. — Burch  -y.  Maypowder, 
1  Vern.  400,  in  which  the  case  in  Cro.  is  cited. 

A  commission  to  Algiers  to  examine  witnesses.  The 
plaintiff  died  before  the  examination,  but  the  witnesses 
were  examined  before  notice  of  his  death.  Though  the 


308  OPINIONS  OF  EMINENT  LAWYERS. 

suit  was  abated,  yet  the  examination  before  notice  held 
to  be  good.  Thompson's  case,.  3  P.  Will.  195,  in  which 
the  case  in  Cro.  is  referred  to. 

Whatever  effectually  determined  a  commission  on  the 
principles  of  common  law,  whether  a  royal  demise,  a 
new  commission,  or  death  of  the  party,  should,  on  the 
principle  of  the  objection  to  the  act  of  1701,  invalidate 
all  acts  done  under  it ;  but  the  cases  cited  prove  that  all 
acts  done  before  notice  are  valid,  When  a  new  Gover- 
nor is  appointed  in  England,  it  takes  some  time  to  conr 
vey  hither  notice  of  the  appointment  ;  and  the  acts  of 
the  old  Governor,  before  notice,  have  always  been  deem- 
ed to  be  valid.  Very  inconvenient  if  not  so. 

Should  it  be  asked,  why,  then,  the  statutes  of  King 
William  and  Queen  Anne  1  Answer,  it  takes  time,  after 
a  royal  demise,  to  settle  the  proper  arrangements  of 
government.  The  common  law  only  supported  all  offir 
cial  acts  performed  before  notice,  and,  therefore,  the  stat- 
utes have  preserved  and  continued  all  commissions  for 
six  months,  and  thus  comprehend  as  well  acts  done  after 
as  before  notice  during  that  period.  S^ch  was  the  de- 
fect of  the  common  law  and  such  the  remedy  provided 
by  the  statutes. 

There  can  be  no  doubt  but  the  act  of  1701  passed  with 
the  fullest  concurrence  and  assent  of  the  Crown  and  the 
two  houses.  Former  bills  on  the  same  subject  had  pass- 
ed in  Maryland  ;  but  they  were  defeated  by  the  royal 
dissent.  The  assembly  addressed  the  King  and  expect- 
ed that  he  would  order  a  bill  to  be  framed  for  the  pur- 
pose of  a  religious  establishment  and  to  be  remitted  hith- 
er for  the  assent  of  the  two  houses.  The  bill  was  ac- 
cordingly framed,  remitted,  and  assented  to  in  1701  ; 
moreover,  after  the  demise  of  King  William,  the  act  of 


OF  THE  COLONIAL  CONSTITUTIONS.          309 

1701  was  transmitted  to  England,  as  was  the  practice 
when  acts  passed  here.  An  application  was  made 
against  it  by  some  dissenters,  which  not  only  failed  of 
effect,  but  was  the  occasion  of  the  particular  confirma- 
tion of  the  pious  Queen  Anne,  which  was  ordered  to  be 
published  in  all  the  churches.  The  12th  of  Car.  II. 
passed  in  the  convention  parliament,  which  was  not  dis- 
solved till  the  29th  of  December,  1660.  Vid.  Parl.  Hist, 
vol.  xxiii.  and  what  is  said  in  Vent.  15.  applies  much 
stronger  to. this  case. 

There  was  a  precedent  royal  assent  to  the  act  of  1701 ; 
parliament  and  assembly  not  to  be  confounded ;  local 
circumstances,  as  well  as  other  reasons,  distinguish 
them.  It  is  true,  there  cannot  be  a  royal  assent  before 
the  meeting  of  parliament ;  but  it  is  true,  there  cannot 
be  a  royal  dissent  after  a  session  of  parliament.  To  acts 
of  assembly  there  may  be  dissent  after  the  session,  and 
why  not  an  assent  before  ?  It  is  not,  except  in  the  case 
of  an  act  of  grace,  usual  for  statutes  to  originate  with  the 
king;  but,  without  do'bt,  if  a  bill  with  the  royal  assent  sho'd 
be  sent  to  the  Lords  and  Commons  and  receive  their  as- 
sent also,  it  would  be  a  perfect  law,  if  even  in  the  form 
of  a  charter,  as  was  the  case  with  Magna  Charta.  That 
which  constitutes  law  is  the  concurring  assent  of  all  the 
branches  of  the  legislature,  wheresoever  it  may  happen 
to  originate,  whatever  may  happen  to  be  the  form  of  it* 
Vid.  Hale,  Orig.  and  Antiq.  Parl.  and  8th  Co.  Rep. 
Prince's  case.  The  King  cannot  be  personally  present 
in  assembly  ;  the  manner  must  be  governed  by  the  na- 
ture of  the  business  :  he  can,  therefore,  dissent  out  of 
assembly  ;  and  why  not  assent  ?  In  most  of  the  acts 
which  have  lately  passed  in  Virginia,  the  acts  do  not  op- 
erate till  the  royal  assent  is  given  :  Why,  then,  if  assent 


310  OPINIONS  OF  EMINENT  LAWYERS. 

or  dissent,  subsequent  to  a  session,  shall  be  so  effectual^ 
may  not  any  assent,  before  a  session,  be  as  effectual  ?  If 
there  be  a  restriction  in  a  governor's  commission  with 
respect  to  particular  acts,,  and  the  restriction  be  not  ob- 
served, his  assent  is  a  nullity :  this  is  in  the  nature  of  a 
precedent  royal  dissent.  Why,  then,  should  not  a  prec- 
edent royal  assent  be  effectual  1  Sir  Philip  Yorke  and 
Mr.  Lutwyche  were  clearly  of  the  above  opinion  on  the 
point  of  restriction.. 

The  discretion  in  passing  acts  of  parliament^  or  not,  is, 
a  royal  incommunicable  prerogative  ;  but  not  so  as  to 
acts  of  assembly.  Such  discretion  may  be  communica- 
ted to  a  Governor.  The  statute  of  Henry  VIII.  relates 
only  to  the  mere  execution  of  the  royal  will.  The  idea 
of  a  provincial  legislature  to  be  kept  up. 

It  is  a  very  slight  objection  that  the  King's  name  was 
used  after  his  demise  ;  his  name  was  unnecessary,  and 
utile  per  inutile  non  vitiatur.  The  royal  name  is  not 
used  in  the  acts  of  New  York  or  Virginia.  What  is  said 
of  the  abatement  of  the  writ  of  summons,  I  do  not  un- 
derstand. Fungitur  officio,  when  returned,  and  the 
qualification  performed.  What  is  said  of  prorogation 
and  dissolution  is  a  mere  mistake  ;  they  may  be,  and 
usually  are,  in  the  Governor's  name. 

Next  consider  the  statutes.. 

AH  commissions  continued  in  full  force  and  virtue  for 
six  months :.  continuance  and  suspension  are  as  oppo- 
site as  motion  ajidi  rest.  If  there  was  a  continuance  for 
six  months,  there  could  be  no  suspension  within,  tliat 
time. 

Full  force  and  virtue.  Plenum  est,  cuinihil  addi  pot- 
est,  cni  niliil  deest  secundum  modum  suce  capacitatis ; 
Iput  if  the  Governor  could  not  meet  the  assembly  ard 


OP  THE  COLONIAL  CONSTITUTIONS.        311 

pass  acts  under  his  commission,  there  was  something 
wanting,  and  the  commission  was  not  continued  in  full 
force;  a  conclusion  directly  against  the  statutes.  If  the 
Governor  had  authority  to  meet  the  assembly,  it  was 
exercisable,  vana  enim  est  potentia,  qu&  non  in  actuin 
venit,  2  Co.  51.  The  assertion  of  a  power  unexercisa- 
ble,  is  a  contradiction  ;  but  it  is  said  the  power  was  ex- 
ercisable only  in  the  name  of  the  Queen.  The  absurdi- 
ty is  the  same,  because  the  capacity  to  exercise  the 
power  is  made  to  depend  upon  an  impossibility,  the 
knowledge  of  an  event  unattainable  by  any  human 
means.  The  law  expects  no  miracles ;  it  is  satisfied 
with  human  prudence.  *  Casus  fortuities  non  est  speran- 
dus  (expectandus),  et  nemo  tenetur  divinare,  4th  Co.  27. 
c.  66.  Litt.  Rep.  98. 

The  governor,  it  is  said,  has  no  exclusive  authority, 
&c.  Exclusive  of  whom,  or  what  1  I  do  not  under- 
stand what  is  meant  by  the  term. 

Blackstone  quotes  from  Hale  and  Bracton.  JPrjnd* 
pium,  caput,  et  finis,  not  applicable  to  an  American  as- 
sembly, nor  even  to  parliament  at  this  time, 

Julius  Crispinus  observes,  distwgmnda  sunt  tempora, 
mutata  enim  hominum  conditions,  mutatcesunt  et  sanc- 
tiones,  nam  pluvima  regula priscis  t&mporibus  accommo- 
doe,  nostris  sunt  aliena.1. 

Queen  Anne,  on  the  llth  of  March,  1701,  met  the 
parliament  that  was  sitting  at  King  William's  demise, 
under  the  statute.  The  Lords-Justices  met  the  parlia- 
ment after  the  death  of  Queen  Anne,  under  the  statute, 
George  II.  met  the  parliament  that  had  been  summoned 
by  his  father,  Should  there  be  a  dissolution  of  parlia- 
ment by  effluxion  of  time,  it  would  be  renewed  and 
meet  under  the  statute. 


312  OPINIONS  OF  EMINENT  LAWYERS. 

Statutes,  accommodated  to  the  times,  have  controled 
the  rule  in  England  :  in  America,  it  is  not  with  any  de- 
gree of  propriety  applicable,  where  the  King  is  necessa- 
rily absent  from  the  assemblies  ;  what  is  done  in  the 
royal  name  is,  for  the  most  part,  done  by  a  deputy ; 
where  in  the  great  point  of  passing  laws,  discretionary 
powers  are  frequently  entrusted ;  where,  as  has  been 
shewn,  there  can  be  no  defect,  on  the  principles  of  the 
common  law,  in  acts  of  government  performed  before  no- 
tice of  a  royal  demise ;  where  the  powers  of  government, 
for  six  months  after  a  royal  demise,  are  by  statutes  con- 
tinued in  full  force,  terms  which  exclude  all  idea  of  sus- 
pension, cessation,  and  defect ;  where  those  powers  are 
therefore  always,  during  that  period,  exercisable  ;  where 
consequently,  the  validity  of  the  exercise  cannot  de- 
pend upon  an  impossible  observance.  Quando  lex  ali- 
qidd  alicui  concedit.  concedere  mdetur  et  id,  sine  quo  res 
ipsavcdere  non  potest.  Co.  Litt,  56. 

An  aiding  act,  it  is  said,  passed  in  Virginia ;  there- 
fore a  similar  provision  was  necessary  in  Maryland.  A 
serious  answer  to  this  remark  would  be  ridiculous  ;  but 
I  cannot  help  observing  how  little  care  is  taken  to  avoid 
inconsistency.  It  is  admitted  that  process  stood  in  need 
of  an  aid,  but  the  Virginia  law  includes  process  as  well 
as  acts  of  assembly.  That  the  act  of  1751  is  relied  up- 
on is  astonishing.  The  statutes  extend  to  a  royal  demise, 
but  a  proprietors  death  was  no  more  thought  of  by  par- 
liament than  the  death  of  any  other  person  who  might 
happen  to  appoint  an  attorney.  The  act  of  1751  very 
properly  aided  process  as  well  as  acts  ;  but  though  the 
act  of  1751  is  nothing  to  the  purpose  for  which  it  has 


OF  THE  COLONIAL  CONSTITUTIONS.         313 

been  cited,  yet,  in  another  view,  it  is  not  immaterial. 
Consider  the  preamble  of  this  act  and  the  rule  of  con- 
struction :  the  intention  or  will  of  the  legislature  dedu- 
cible  from  the  whole  act,  of  which  the  preamble  is  part, 
constitute  the  law.  There  can  be  no  doubt  but  it  was 
the  will  or  intention  of  the  assembly  in  1751,  that  laws 
which  should  pass  after  a  proprietor's  death  should  be 
aided,  as  well  as  process.  In  order  that  this  purpose 
might  be  attained,  the  act  of  1751  enacted  only  that 
the  Governor's  commission  should  remain  in  force,  so 
that  as  far  as  the  sense  of  the  assembly  in  1751  is  of 
weight,  it  follows,  that  preserving  the  Governor's  com- 
mission is  sufficient  to  preserve  the  power  to  make  laws  ; 
wherefore  it  may  be  inferred  from  the  manner  of  the 
provisions  made  by  the  act  of  1751,  to  have  been  the 
opinion  of  the  assembly  that  the  act  of  1701  was  in 
force.  * 

With  what  license  are  principles  rejected  and  adopt- 
ed, uno  flato  ? 

Above  one  hundred  acts  have  recognized  the  force  of 
the  act  of  1701 ;  but  these  clear  indications  of  the  sense 
of  different  legislations  are  slighted,  the  sense  of  the 
legislature  is  supposed  in  one  instance  only,  and  this 
one  instance  is  represented  as  a  conclusive  proof. 

The  argument,  from  the  number  of  supplementary 
dependent  acts,  and  therefore  of  recitals,  need  not  be 
insisted  upon  here.  These  acts  are  so  many  legislative 
declarations,  to  which  all  ought  to  give  credit.  Pop. 
Rep.  79.  The  acts  that  passed  in  June  1702,  Oct.  1703, 
in  April  1704,  show  the  sense  of  these  assemblies  ;  for 
41 


314  OPINIONS  OF  EMINENT  LAWYERS. 

no  new  writ  of  election  issued  till  after  the  April  ses- 
sion, 1704. 

If  the  act  of  1701  be  void,  we  have  no  religious  es- 
tablishment, no  rectors  or  vestries.  What  is  to  become 
of  the  churches,  glebes,  donations  to,  purchases  by,  or 
from  them,  leases,  &c.  judgment,  convictions,  determina- 
tions before  the  governor  and  council,  assessments,  par- 
ish registers,  &c. /? 

What  will  become  of  all  those  most  useful  acts  that 
passed  the  3d  of  June,  1715,  and  the  acts  dependent  up- 
on them  ;  for  the  assembly  then  met  on  writs  of  elec- 
tion that  had  issued  in  the  King's  name  1  The  Gover- 
nor derived  his  authority  from  the  King's  commission ; 
Lord  Benedict  died  on  Good  Friday  before ;  his  son, 
Lord  Charles,  was  a  protestant ;  the  disability  which 
was  the  cause  of  the  royal  assumption  was  removed ; 
the  charter  of  the  province  had  a  full  operation  ;  Lord 
Charles  was  restored ;  he  became  supreme  magistrate  in 
loco  regie ;  laws  and  process  were  to  be  in  his  name ; 
Governor  Hart's  commission  from  the  Crown  was  deter- 
mined :  a  new  commission  from  Lord  Charles  passed 
the  30th  of  May,  1715.  On  the  principle  of  the  objec- 
tion, all  the  acts  that  passed  the  3d  of  June,  1715,  and 
the  dependent  acts,  are  void.  How  are  wills  to  be  prov- 
ed over  again  ;  administrations  to  be  granted  ;  proceed- 
ings of  delegates  enure  ;  titles  affected  by  the  enrolment 
act  revived  ;  when  are  the  courts  to  meet,  &c.  &c/?  What 
is  to  be  done  to  prevent  play  ing  the  very  devill  Quam 
periculosum  est,  res  novas  <&  inus-itatax  inducere  I 

Some  gentlemen  will  have  a  great  deal  to  do  as  legis- 
lators and  lawyers.  Unhappily.  as  legislators  they  can- 
not remedy  the  inconvenience  ;  for  a  re-enaction  of  the 
laws  will  not  be  sufficient,  and  a  confirmation  would 


OF  THE  COLONIAL    CONSTITUTIONS'.  315 

have  a  retrospective  operation,  which  they  are  princi- 
pled against.  A  word  or  two  on  the  matter  of  relation 
or  retrospect. 

If  an  act  pass  the  last  day  of  a  long  session,  and 
nothing  expressed  in  it  to  control  the  relation,  it  is,  in 
notion  of  law,  an  act  of  the  first  day  of  the  session ;  but 
yet,  I  think,  the  rule  Itx  normam  imponit  futurLS,  is  a 
very  just  one,  when  the  application  corresponds  with 
the  reason  of  it.  It  would  be  cruel  and  unjust  to  punish 
an  action,  indifferent  when  done,  as  a  crime,  by  a  re- 
trospective law.  Moncat  lex  oportet  pnusquam  feriat ; 
but  the  confirmation  of  the  act  of  1701  is  clear  of  this 
imputation,  for  no  person  who  did  not  commit  a  breach 
of  it  would  be  liable  to  the  little  penalties,  and  none 
who  did  commit  a  breach  could  properly  allege  that  he 
thought  the  action  lawful,  because  no  one  doubted  the 
existence  and  validity  of  the  law.  JKcus  cst,  cujus  meus 
est  rea.  Besides,  all  this  tenderness  is  affected,  since 
there  cannot  be  a  case  of  punishment  to  be  inflicted. 

All  aiding  acts  are  retrospective. 

Suppose  a  law  had  p'assed  in  1701,  inflicting  the  pains 
of  death  on  the  crime  of  burglary,  and  a  trial,  conviction, 
and  execution,  before  notice  of  the  King's  demise.  On 
the  principle  of  the  objection  (vide  what  is  said  by  Per- 
sey  in  the  year-book  at  large,  above  cited),  the  execu- 
tioner would  have  been  guilty  of  murder,  tho  Judges, 
Governor,  and  Council,  accessories,  and  yet  each  would 
have  performed  his  duty.  This  would  be  more  cruel 
and  unjust  than  even  a  clear  retrospective  act  inflicting 
a  little  penalty  on  an  action  supposed  by  the  agent,  at 
the  very  time  of  doing  it,  to  be  unlawful. 

Military  as  well  as  civil  commissions  were  continued 
by  the  statute  in  full  force  and  virtue.  Suppose  a  court 


316  OPINIONS  OF  EMINENT  LAWYERS. 

martial,  trial,  condemnation,  and  death,  inflicted  before 
notice  of  the  royal  demise.  This  may  have  probably 
happened;  what  a  deal  of  employment  for  Jack 
Ketch ! 

To  conclude.  Suppose,  according  to  the  rule  in 
Plowdeu,  the  case  stated,  and  the  question  put  to  the 
parliament  that  passed  the  above  statutes— You  have  en- 
acted that  all  commissions  should  continue  in  full  force, 
&c.  and  therein  included  the  commissions  of  American 
Governors  :  it  was  the  duty  of  these  Governors  to  act 
in  His  Majesty's  name  during  his  lifetime.  Did  you 
mean  that  what  they  should  do  in  his  name  at  a  time 
when  they  could  not  know  by  any  human  means  that 
he  was  dead,  should  be  void,  because  they  were  not,  by 
some  miraculous  interposition,  informed  of  the  King's 
demise  ] 

No.  It  was  at  first  said  that  all  the  supplementary  and 
dependent  acts  were  void,  as  well  as  the  act  of  1701  ; 
but  it  seems  that  the  contrary  is  to  be  contended  for,  in 
order  to  lessen  the  weight  of  the  argument,  ah  inconven- 
ientia.  >.  5?" 

The  former  position  was  more  consistent.  If  the  act 
o£*1701  was  originally  void,  and  none  of  the  supplemen- 
tary or  dependent  acts  have  confirmed  it,  these  acts  are 
void  ;  for,  as  said  above,  it  is  the  will  or  intention  of 
the  legislature,  which  constitutes  law.  Without  execution, 
the  law  is  a  dead  letter  ;  the  execution  must  be  agreea- 
ble to  the  legislative  will,  Technical  words  are  not,  as  in 
the  limitation  of  estates,  necessary  to  express  their  will. 
When  one  act  is  supplementary  to,  or  dependent  upon, 
a  prior  act,  the  construction  is  on  both,  the  will  being 
deducible  from  both:  if  the  former  law  be  rejected,  the 
execution  of  the  latter  law  will  not  be,  as  it  ought  to  be, 


OF    THE    COLONIAL    CONSTITUTIONS.  317 

agreeable  to  the  legislative  will.  Wherefore  either  the 
supplementary  and  dependent  acts  had  confirmed  the 
original  act  of  1701,  or  they  are  void.  What  is  implied 
in  a  law,  is  as  effectual  as  what  is  expressed.  The  rule, 
expressio  eorum,  qu(B  tacite  insunt,  nil  operantur,  is  as 
applicable  to  this  as  to  any  subject.  It  is  agreed  that  the 
act  of  1701  might  have  been  expressly  confirmed:  a  con- 
firmation necessarily  implied,  is  as  strong  as  an  express 
one  ;  and  what  can  be  more  necessarily  implied  in  a 
law,  than  that  which,  if  not  supplied  in  construction, 
must  entirely  destroy  it  ?  I  refer,  in  general,  to  cases  of 
construction,  which  are  too  numerous  to  be  applied  here. 
The  principle,  and  not  the  letter  of  a  determination,  is 
the  authority  of  it  ;  and  on  this  ground  I  apprehend 
there  may  be,  whether  any  case  in  point  can  be  found  or 
not,  ah  implied  confirmation. 

I  have  avoided  taking  notice  farther  than  I  was  led 
to  do  by  1st  Vent.  15.  of  what  has  been  done  in  times  of 
great  danger  or  turbulence,  because  I  think  such  instan- 
ces rather  show  the  distemper  than  the  constitution  of  the 
state;  but  as  some  thing  of  this  kind  has  been  indistinctly 
spoken  of,  I  will  add  in  what  manner  parliaments  have 
been  convened  upon  accessions  to  the  throne. 

The  first  writ  of  summons  of  the  commons,  now  ex- 
tant, was  in  the  49th  year  of  Henry  the  Third. 

Edward  the  First  was  in  the  Holy  Land,  at  the  time 
of  the  demise  of  his  father,  Henry  the  Third.  On  return- 
ing to  England,  he  was  crowned  the  14th  of  August, 
1274,  near  a  year  and  a  half  after  his  father's  death.— 
Soon  after  his  coronation,  he  called  a  parliament. 

Edward  the  Second  issued  new  writs.  He  being  depos- 
ed by  parliament  and  compelled  to  resign,  was  succeed- 
ed by  his  son,  Edward  the  Third,  who  met  the  parlia- 


318  OPINIONS    OF  EMINENT  LAWYERS. 

ment  that  had  been  called  in  his  father's  name  and  had 
deposed  him.  This  parliament  continued  for  about  one 
month  after  Edward  the  Third's  coronation. 

Richard  the  Second— new  writ  of  summons.  Henry 
the  Fourth  met  the  parliament  that  had  been  called  by 
Richard  the  Second.  Henry  the  Fourth  had  summoned 
a  parliament  to  meet  the  24th  of  March,  1413.  Whether 
Henry  the  Fifth  met  this  parliament  or  not,  is  doubtful. 

Henry  the  Sixth  issued  new  writs. 

Edward  the  Fourth  issued  new  writs. 

Edward  the  Fifth:  nothing  done  in  his  time.  He  was 
born  in  a  sanctuary  and  died  in  a  prison. 

Richard  the  Third  issued  new  writs. 

Henry  the  Seventh,  the  same. 

Henry  the  Eighth,  the  same. 

Edward  the  Sixth,  the  same, 

Mary,  the  same.  On  her  marriage,  a  new  writ  issued 
in  the  name  of  Philip  and  Mary, 

When  Mary  died,  the  parliament  was  sitting,  17th 
Nov.  1558,  and  proclaimed  Elizabeth. 

Elizabeth  issued  new  writs,  1st  Dec.  1558. 

James  the  First  issued  new  writs. 

Charles  the  First,  the  same. 

The  convention  parliament  began  25th  of  April  1660. 
Agreed  in  a  committee  of  both  houses  to  proclaim 
Charles  the  Second,  8th  of  May,  1660.  He  was  accord- 
ingly proclaimed,  30th  of  May. 

Charles  the  Second  met  the  convention  parliament. 

James  the  Second  issued  new  writs. 

What  happened  at  the  Revolution  need  not  be  men- 
tioned. 

Queen  Anne  met  the  parliament  that  was  sitting  at 
King  William's  demise,  under  the  statute. 


OF  THE  COLONIAL  CONSTITUTIONS.  319 

George  the  First.  The  Lords- Justices  met  the  parlia- 
ment that  had  been  summoned  by  Queen  Anne,  under 
the  statute. 

George  tire  First  died  at    Osnaburg,    llth  of  June, 

1727.  An  account  of  his  demise  was  received  the  14th  of 
June.  On  the  fifteenth,  the  parliament  met,  was  prorog- 
ued by  commission  to  the  27th  June,  1727,  when  the 
session  was  opened  by  George  the  Second.  17th  July, 

prorogued  to  the  29th  of  August.  On  the  7th  of  August 
1727,  dissolved  and  new  writs  issued. 

I    have    not,    above,   insisted  upon  the  act  of  1704, 

though  that  alone  may  be  sufficient  to  establish  the  act 
of  1701,  because  hardly  any  thing  can  be  suggested, 
which  will  not  occur  to  every  one  whose  business  it  is  to 
consider  subjects  of  this  nature,  and  shall  therefore  only 
observe,  that  the  practice  of  assemblies  enforces  the  act 
of  1704;  for  at  different  periods  before  1704,  the  assem- 
blies renewed  the  acts  that  had  passed,  and  having  deter- 
mined which  of  them  were  convenient  and  inconvenient, 
by  an  act  similar  to  that  of  1704  declared  the  former 
should  remain  in  force  and  that  the  latter  should  be  re- 
pealed. From  this  circumstance,  the  intention  or  will  of 
the  legislature  may  be  strongly  inferred.  I  have  also  a- 
voided  a  particular  application  of  the  supplementary  and 
dependent  acts.  The  detail  would  be  very  prolix^ 
and  throw  no  new  light  on  the  question  ;  but  there  being 
one  dependent  act  of  a  peculiar  nature,  I  shall  make  a 
short  remark  upon  it:  I  mean  the  act  of  1713,  cap,  10, 
which  does  not  expressly  mention  or  refer  to  the  act  of 
17017  but  enacts  in  general  terms  that  a  minister,  lawfully 
inducted,  or  admitted,  shall  have  a  proportionable  part 
of  the  401bs.  of  tobacco  per  poll,  computing  the  time 
from  the  day  of  his  induction  to  the  laying  the  levy, 
&c.  Vid.  the  act.  The  will  of  the  legislature  constitutes 


320  OPINIONS    OF    EMINENT   LAWYERS. 

the  law.  By  this  act;  if  a  minister  should  serve  the 
whole  year  except  one  day,  he  would  be  entitled  to  the 
40  Ibs.  of  tobacco  per  poll,  after  deducting  for  that  day. 
According  to  the  objection,  if  the  minister  should  com- 
pletely serve  for  the  whole  year,  he  would  be  entitled  to 
nothing.  That  there  should  be  parts  without  a  whole,  ali- 
quot parts  of  nothing  is  a  new  discovery.  If  objected,  that 
the  act  of  1701  being  void,  there  can  be  no  incumbent, 
then  there  must  always  be  a  vacancy,  and  the  40  Ibs.  of 
tobacco  per  poll  be  eternally  applied,  under  the  act  of 
1705,  cap.  24,  but  to  what  end  ]  If  objected,  this  act  is 
void,  then  the  argument  ah  inconvenientia  will  have  its 
full  force. 

D.  D. 

Third. 

The  Opinion  on  the  some  subject  by  Mr.  William  Paca, 
an  eminent  lawyer  of  Maryland  *. 

Case. — The  province  of  Maryland  was  in  the  hands 
of    the  Crown   in   the   reign  of   King   William,    and 


*  Yet  see  the  opinion  of  those  immortal  lawyers,  the  Attorney  and  Solicitor, 
Yorke  and  Talbot,  under  the  head  of  the  Governor  1.  No.  (i;  wherein  they  avow 
their  judgment  to  be,  that  "laws  passed  by  the  Governor  appointed  by  the  Lords 
Proprietors,  in  their  names,  afier  the  sale  [of  Carolina.]  and  before  notice  thereof  ar- 
rived in  the  province,  are  of  the  same  validity  as  such  laws  would  have  been,  if  they 
had  been  passed  in  like  manner  before  such  sale  :"  now,  as  every  demise  imports 
transfer,  the  demise  jf  a  province  by  sale  is  the  same  in  contemplation  of  law  as  the 
demise  of  a  kingdom  by  the  decease  of  the  King  ;  and  notice  of  the  demise  by  de- 
cease is  as  necessary  to  effect  the  legal  object,  as  notice  of  the  transfer  by  sale.  The 
sophistry  of  Mr.  Paca's  opinion  consists  in  this,  that  he  reasons  the  question  as  if 
it  were  concerning  the  supreme  legislature,  and  not  a  local  legislature,  having  local 
usages ;  and  the  local  usages  of  the  assembly  of  Maryland  appear  above  to  have 
been  different  from  the  law  of  parliament ;  depending  perhaps,  much  more  upon 
the  continuance  of  the  Governor,  than  upon  the  life  of  the  King;  and  we  may  see 
how  strongly  this  notion  had  taken  hold  on  the  minds  of  lawyers-,  in  the  question  at 
New  York  upon  the  dissolution  of  the  assembly  by  the  discontinuance  of  the  Gov- 


OP  THE  COLONIAL  CONSTITUTIONS.  321 

Queen  Anne.  A  general  assembly,  in  the  time  of  William 
had  been  legally  chosen  by  the  King  's  writ  of  election 
and  summons :  King  William  died  on  the  8th  March 
1701-2  :  without  any  fresh  writ  of  election  and  summons 
the  assembly  afterwards  met,  and  on  the  16th  March 
1701-2,  made  and  enacted  the  contested  law,  commonly 
called  the  forty  per  poll  law. 

Qu&re, — Is  this  forty  per  poll  act  a  law  or  not '? 

The  King  being  the  fountain  of  all  judicature,  the 
writ  of  summons  of  the  parliament  issues  in  his  name 
and  by  his  authority  ;  and  the  parliament  commences 
and  is  held  by  such  writ  of  summons  :  all  commissions, 
civil  and  military,  flow  from  him  :  and  all  process  in  the 
several  courts  of  justice  proceeds  from  him  and  in  his 
name.  At  common  law,  therefore,  upon  the  demise  or 
death  of  the  King,  the  writ  of  summons  abated  and  the 
parliament  was  dissolved ;  all  commissions,  civil  and 
military,  were  determined  ;  and  all  process  in  the  courts 
of  justice  abated  or  discontinued.  To  prevent  the  in- 
conveniency,  delay  and  expense  of  a  general  abatement, 
or  discontinuance  of  process  in  the  courts  of  justice,  an 
act  was  passed  in  the  time  of  Edward  the  Sixth  ;  but  not 
being  large  and  comprehensive  enough,  the  act  of  1  An- 
ne, cap.  8.  was  afterwards  enacted.  The  continuance 
of  all  process  in  the  courts  of  justice  by  the  act  of  Ed- 
ward the  Sixth,  after  the  demise  of  the  King,  did  not 


ernor.  The  Attorney  and  Solicitor-General,  Yorke  and  Talbot,  we  have  seen,  ar- 
gued their  question  upon  common  law  principles  ;  so  did  Mr.  Dulany  of  Mary- 
land ;  and  he,  like  them,  inculcated  to  keep  the  attention  fixed,  throughout  the  ar- 
gument, to  the  nature  of  the  question,  as  it.  related  to  a  local  legislature.  It  is  easy 
for  judges,  sitting  in  Westminster  hall,  .to  say— we  will  take  notice  of  the  King, 
who  reigns  over  us:  but  what  notice  can  judges  take  at  the  distance  of  three  thou 
sand  miles  7  They  must  argue  every  question  upon  common  law  principles,  which 
never  require  impossibilities  qf-any  one. 

42 


322  OPINIONS  OP  EMINENT  LAWYERS'. 

invigorate  or  impliedly  revive  the  patents  of  the  justi- 
ces, or  commissions  of  the  judges.  This  was  a  mischief 
which  called  for  redress  ;  and  hence  the  statute  of  the 
7th  and  8th  of  William  III;  cap.  27,  which  being  local 
and  not  reaching  the  plantations,  was  afterwards  exten- 
ded by  the  above  act  of  1  Anne,  cap.  8.  Another  mis- 
chief demanded  redress  ; — the  dissolution  of  the  parlia- 
ment by  the  abatement  of  the  writ  of  summons  upon 
the  demise  of  the  King :  wherefore  the  act  of  7  and  8 
William  III.  cap.  15.  was  enacted.  This  act  is  express- 
ly confined  to  Great  Britain,  and  not  extended  to  the 
plantations. 

By  virtue  of  the  provisions  in  the  several  statutes,  I 
admit,  upon  the  demise  of  King  William  the  proceedings 
in  our  courts  of  justice  were  not  abated  or  discontinued : 
and  I  also  admit,  the  commissions  in  this  province,  civil 
and  military,  were  not  determined  :  but  I  hold  the  as- 
sembly was  dissolved. 

I  lay  out  of  the  case  the  act  of  7  and  8  William  III. 
cap.  15,  which  provides  against  the  dissolution  of  the 
parliament  at  home.  I  presume  no  gentleman  of  legal 
knowledge  will  oppose  it  against  me  :  the  act  being  local 
and  not  extending  to  the  plantations. 

The  common  law  operates  till  suspended  or  abrogated 
by  statute  :  upon  the  demise  of  the  King,  the  writ  of 
summons  of  the  parliament,  at  common  law,  abated,  and 
the  parliament  was  dissolved.  I  ask,  upon  the  demise 
of  King  William  what  statute  prevented  the  abatement 
or  discontinuance  of  the  writ  of  summons  by  which  the 
assembly  of  this  province  was  then  held  1  if  no  statute 
existed,  the  common  law  attached,  and  the  assembly 
was  dissolved. 

I  have  been  told   a  gentleman    of  very   respectable 


OF  THE  COLONIAL  CONSTITUTIONS.  323 

character  lias  given  a  different  opinion,  and  relies  upon 
the  act  of  7  and  8  of  William,  cap,  277  (extended  to  the 
plantations  by  the  act  of  1  Anne,  cap.  8.)  which  enacts 
that  all  commissions,  civil  and  military,  shall  remain  in 
full  force  for  six  months  after  the  demise  of  the  King. 

I  grant  the  commissions  of  the  Governor  upon  the 
death  of  King  William  did  not  cease  or  determine  :  I 
also  grant  that  the  Governor  is  invested  with  the  pow- 
ers of  summoning,  proroguing,  and  dissolving  the  as- 
sembly: but  these  concessions  cannot  influence  the 
case. 

When  we  speak  of  the  powers  of  the  Governor  to  sum- 
mon, prorogue  and  dissolve,  we  ought  to  be  explicit  in 
our  ideas.  The  Governor  has  no  exclusive  authority  in 
this  department  of  his  office  :  the  writ  of  summons  for  an 
assembly  issues  in  the  King's  name,  tested  only  by  the 
Governor  :  the  prorogation  is  made  in  the  King's  name 
and  so  is  the  dissolution. 

The  assembly,  then,  being  held  by  the  King's  writ  of 
summons,  what  avails  the  subsisting  commission  of  the 
Governor  upon  the  point  of  abatement  or  discontinu- 
ance ?  The  writ  may  abate  without  affecting  the  com- 
mission :  there  is  no  clashing  or  repugnancy  :  a  sum- 
mons might  have  issued  for  a  new  assembly  in  the  name 
of  Queen  Anne,  and  every  power  might  have  been  ex- 
erted consequential  upon  such  commission. 

The  argument  cannot  be  rested  upon  the  general  op- 
eration of  the  Governor's  commission  to  summon,  pro- 
rogue, and  dissolve ;  for  these  powers,  with  respect  to 
the  parliament  at  home,  upon  the  demise  of  the  King 
devolve  upon  his  successor :  yet,  at  common  lnwl  the 
successor  could  not  proceed  upon  a  writ  of  summons 
awarded  in  the  time  of  the  predecessor :  the  parliament 


324  OPINIONS    OP    EMINENT     LAWYERS. 

dissolved,  and  a  new  writ  issued.  I  observed  the  con- 
tinuance of  all  process  in  the  several  courts  of  justice 
did  not  prevent  a  determination  of  the  commissions  of 
the  judges  upon  the  death  of  the  King  :  and  yet  no  pro- 
cess could  be  executed  without  judges  and  officers.  Up- 
on what  principle  then  shall  the  mere  continuance  of  a 
commission  invigorate  a  process,  which,  at  common  law, 
upon  the  event  of  the  King's  death  ceased  and  deter* 
mined  ?  But  to  mention  a  case  more  analogous  to  the 
present.  The  statute  of  Edward  the  Sixth  extended  on- 
ly to  civil  suits  :  criminal  proceedings  were  left  as  they 
stood  at  common  law,  and  upon  the  demise  of  the  King 
abated  or  discontinued.  The  act  of  7  and  8  William  III, 
cap.  27.  continued  all  commissions  for  six  months,  &c. 
Did  the  subsisting  commissions  of  the  judges,  after  the 
demise  of  the  King,  prevent  an  abatement  or  discontinu- 
ance of  criminal  process  ?  Could  the  courts  of  judica- 
ture proceed  upon  a  criminal  process  awarded  in  the 
time  of  the  deceased  King  1  No.  The  parliament  was 
aware  of  this  in  the  time  of  Anne,  and  provided  against 
the  mischief  by  an  express  statute.  The  court  of  King's 
Bench  is  authorized  by  commission  to  issue  criminal 
process  :  the  Governor  was  authorised  by  commission  to 
issue  a  writ  of  summons  :  the  criminal  process  issues  in 
the  King's  name,  tested  by  the  court  of  B.  R.  The  writ 
of  summons  for  an  assembly  issued  in  the  King's  name, 
tested  by  the  governor  :  the  commissions  of  the  judges 
of  B.  R.  subsist  after  the  demise  of  the  King :  the  com- 
mission of  the  Governor  also  subsisted :  but  upon  the 
event  of  the  King's  death,  before  the  statute  of  Anne, 
the  criminal  process  ceased  and  determined,  and  the 
court  of  King's  Bench  could  not  proceed  upon  it.  What 
shall  prevent  a  determination  of  the  writ  of  summons  or 


OP  THE  COLONIAL  CONSTITUTIONS.        325 

warrant,  after  proceedings  upon  it  ?  The  King,  in 
judgment  of  law,  is  a  body  politic,  to  prevent  an  inter- 
regnum. The  powers  of  government  lodged  in  the 
crown  do  not  drop  upon  a  demise;but  are  instantaneously 
handed  to  the  successor,  without  any  cessation  or  in- 
termission :  the  power,  therefore,  to  summon,  prorogue, 
and  dissolve  the  parliament,  devolves  as  a  subsisting 
power  undetermined. 

Before  the  act  of  William,  cap,  27.  the  powers  of  gov- 
ernment delegated  to  the  Governor,  upon  the  death  of 
the  King  determined  with  the  commission  :  and  of  con- 
sequence the  power  to  summon,  prorogue,  and  dissolve 
assembly,  ceased.  After  the  above  act  of  William,  the 
commission  of  the  Governor  did  not  fall  upon  the  demise 
of  the  King,  but  remained  in  force  for  six  months.  Up- 
on the  event,  then,  of  King  William's  death,  the  power 
to  summon,  prorogue,  and  dissolve  the  assembly  did  not 
fail,  but  survived  and  existed  in  the  Governor  as  a  sub- 
sisting power  undetermined. 

The  power  to  summon,  prorogue,  and  dissolve  the  par- 
liament is  handed,  by  the  common  law,  as  a  subsisting 
power  to  the  succeeding  monarch  ;  the  power  to  sum- 
mon, prorogue,  and  dissolve  the  assembly  of  this  prov- 
ince, was  handed  by  statute  law,  upon  the  demise  of  the 
King,  as  a  subsisting  power  to  the  Governor. 

But  the  succeeding  monarch,  notwithstanding  the 
subsistence  of  the  power  to  summon,  prorogue,  and  dis- 
solve, cannot,  by  common  law,  proceed  upon  the  writ  of 
summons  issued  by  his  predecessor :  a  fresh  writ  of 
summons  must  issue,  and  a  new  parliament  must  be 
called.  Did  the  statute  of  William  give  a  greater  lati- 
tude to  the  subsisting  power  of  the  Governor? 

The  statute  of  William,  cap.  27.  is  enacted  in  general 


326  OPINIONS  OF  EMINENT  LAWYERS. 

expressions  :  all  commissions,  civil  and  military,  shall 
remain  in  full  force  for  six  months  after  the  death  of 
the  King.  My  lord  Coke  observes,  in  the  construction  of 
a  statute  we  should  always  advert  to  what  the  mischief 
was  at  common  law. 

Before  the  above  statute  of  William,  by  the  common 
law,  all  patents  of  justices,  commissions,  civil  and  milita- 
ry, were  determined  by  the  King's  death  ;  and  the  de- 
fect or  mischief  was  the  anarchy  resulting  from  the 
want  of  officers  to  put  the  laws  in  execution.  This,  then, 
was  the  mischief  the  statute  meant  to  provide  against: 
and  as  the  same  anarchy,  upon  the  same  event,  pre- 
vailed in  the  plantations,  the  act  of  William  was  extend- 
ed by  the  1st  Anne,  cap.  8.  Not  a  syllable  is  dropt 
with  respect  to  the  parliament :  nor  is  there  any  ground 
whatsoever  to  infer  that  the  preventing  of  a  dissolution 
of  the  parliament  upon  the  demise  of  the  King  was  an 
object  in  contemplation  when  the  above  statutes  were 
framed.  The  dissolution  did  not  spring  from  the  deter- 
mination of  commissions  :  the  continuance,  therefore,  of 
commissions  was  never  meant  as  a  prop  to  parliament. 

The  celebrated  Blackstone  lays  down  the  law,  that 
a  parliament  may  be  dissolved  by  the  demise  of  the 
Grown :  for  the  King  being  considered  in  law  the  head 
of  the  parliament — caput,  principium  et  finis — that 
failing,  the  whole  body  is  extinct.  While  the  province 
was  in  the  hands  of  the  Crown,  I  ask  who  was  caput, 
principium  et  finis  of  the  general  assembly  1  the  King, 
or  his  deputy,  the  Governor  ?  I  affirm  not  the  Gover- 
nor ;  upon  no  principle  can  he  be  considered  ut  caput, 
vel  principium  ;  for  the  assembly  commenced  and  was 
held  by  the  King's  writ  of  summons,  tested  only  by 
the  Governor  :  nor  upon  any  principle  can  he  be  consid- 


OP  THE  COLONIAL  CONSTITUTIONS.  327 

ered  ut  finis  of  the  general  assembly ;  for  upon  the 
death,  or  removal  of  a  Governor,  the  assembly  did  not, 
in  law,  cease  and  determine,  but  was  kept  alive  by  the 
King's  writ  and  subsisted.  Only  the  King,  then,  could 
have  been  caput,  principium,  ct  finis  ;  upon  his  demise 
a  dissolution  followed. 

The  colony  of  Virginia  was  in  the  hands  of  the  Crown, 
as  well  as  this  province,  in  the  reign  of  William  and 
Anne.  Upon  the  death  of  King  William  the  assembly 
of  Virginia  was  dissolved  :  a  fresh  writ  of  summons 
issued,  and  a  new  assembly  was  called:  the  subsisting 
commission  of  the  Governor,  by  virtue  of  the  statute  of 
William  which  continues  all  commissions,  civil  and  mili- 
tary, did  not  prevent  a  dissolution;  and,  so  far  from  enter- 
taining any  such  idea  of  the  statute,  the  general  assem- 
bl}r  afterwards,  in  the  fourth  year  of  Queen  Anne, 
passed  "an  act  for  the  continuing  of  general  assemblies, 
in  case  of  the  death  or  demise  of  Her  Majesty, 
her  heirs,  or  successors,"  &c.  Had  the  statute  of  Wil- 
liam a  more  extensive  influence  in  Maryland  than  in  Vir 
ginia  1  or  doesit  operate  differently  in  different  colonies'? 

Having  then  observed,  that  the  assembly  of  this  pro- 
vince was  dissolved  upon  the  death  of  King  William,  and 
that  the  writ  of  summons  by  which  it  was  held  was  dis- 
continued or  abated;  I  now  lay  down  the  positon,  as  a 
fundamental  principle,  that  a  parliament  cannot  be  legal- 
ly convened  without  the  King's  writ  of  summons.  And  I 
further  assert,  that,  by  the  undobted  constitution  of  this 
prvince,  when  in  the  hands  of  the  Crown,  no  laws  could  be 
enacted  without  the  consent  of  the  freemen  legally 
called  together  and  assembled  by  the  King's  writ 

*/  o 

of  summons:  I  do  not  expect  to  be  contradicted 
in  this  assertion  of  the  law;  but  the  fact  is  stated 
as  %>postulatwm  in  the  case,  that,  after  the  demise  of  King 


328  OPINIONS    OF  EMINENT    LAWYERS. 

William;  no  fresh  writ  of  summons  was  issued.  By 
what  authority,  then,  and  upon  what  constitutional 
ground,  was  the  assembly  convened,  which  enacted  the 
contested  law  of  1701-2? 

After  the  death  of  the  late  Charles,  Lord  Baltimore, 
and  before  the  general  assembly  was  apprized  of  the 
event,  a  session  was  held  and  law's  enacted  :  by  the 
death  of  his  Lordship,  the  assembly  was  held  to  be  dis- 
solved, and  a  fresh  writ  of  summons  issued.  When 
the  general  assembly  was  afterward  .convened,  a  law  was 
immediately  passed,  to  confirm  and  make  valid  the 
several  acts  which  had  been  made  in  the  preceding  ses- 
sion, the  death  or  demise  of  the  said  Charles,  Lord  Bal- 
timore, notwithstanding.  What  can  be  a  clearer  proof 
that  an  asembly  dissolved  upon  a  demise,  and  afterwards 
called  without  a  fresh  writ  of  summons,  is  illegally  con- 
vened, and  cannot  enact,  or  establish  laws  ? 

When  I  assert  for  law,  that  the  parliament  cannot  be 
legally  convened  without  the  King's  writ  of  summons, 
I  do  not  forget  the  two  capital  cases  of  the  restoration, 
and  revolution  parliaments :  the  former  summoned  in 
the  names  of  the  keepers  of  the  liberties  of  England  ; 
the  latter  in  the  name  of  the  Prince  of  Orange,  before 
the  crown  was  placed  upon  his  head.  Charles  the  Sec- 
ond met  the  lords  and  commons  thus  assembled,  and  laws 
were  enacted:  King  William,  too,  when  crowned,  met 
the  lords  and  commons  thus  summoned,  and  laws  were 
also  .enacted :  both  parliaments  passed  a  statute  to  estab- 
lish the  several  conventions  as  legal  parliaments,  and 
to  cure  the  defect  or  want  in  the  King's  writ  of  summons. 
If  these  cases,  however  ,are  urged  against  me,  I  shall 
only  reply  in  the  language  of  an  eminent  sage  of  the 
law  upon  this  subject :  they  are  cases  founded  upon  the 
necessity  of  the  thing,  which  supersedes  all  law. 


OF  THE  COLONIAL  CONSTITUTIONS.         OZU 

It  has  been  alleged,  that  the  act  of  1701-2,  though 
void  ab  initio,  has  been  lifted  up  and  animated  by  suc- 
ceeding acts  of  assembly.  I  should  be  glad  to  know, 
what  succeeding  acts  of  assembly  have  worked  this 
miracle?  When  did  the  act  of  1701-2  first  obtain  the 
binding  force  of  a  law  ')  From  what  period  shall  we  cal- 
culate the  commnecement  of  its  validity  ?  from  the  act 
of  1704  ?  or  from  the  actof  1713  1  or  from  the  act  of  1715 '? 
or  from  the  act  of  1730  ?  or  from  the  actof  1763  ?  or 
from  the  actof  1771?  which  of  these  acts  communicated 
the  obligatory  virtue  '?  That  successive  assemblies  have 
presumed  an  existence  of  the  act  of  1701-2, 1  freely  admit ; 
that  the  above  several  laws  recognize  it  as  an  act  in 
force,  by  reference,  recital,  and  supplementary  provis- 
ions, I  also  admit ;  but,  that  such  recognition  can,  upon 
any  legal  principle  of  construction,  amount  to  a  confirma- 
tion, I  must  take  the  liberty  to  deny. 

I  presume  I  may  safely  assert  that  the  act  of  1701-2  has 
never  been  re-enacted;  but  the  advocates  for  this  act  in- 
sist that  it  has  been  confirmed:  the  position,  then,  is 
this,  that  the  act  of  1701-2,  though  void  al  initio,  has 
been  confirmed  by  succeeding  laws.  Every  confirma- 
tion must  be  express  or  implied :  I  can  find  no  succeeding 
law,  which  expressly  confirms  the  act;  and  an  act  void 
ad  initio,  confirmed  j  impliedly,  by  an  after  act,  is,  in  my 
judgment,  a  perfect  novelty  in  the  law  :  I  candidly  own 
I  never  met  with  such  an  assertion,  and  confer  irr.-  ie'uo- 

'  £         i  j 

ranee  of  any  statute  existing  upon  such  implication.  I 
have  met,  indeed,  with  a  maxim,  posteriores  leges  prio- 
res  alrogant :  subsequent  laws  cancel  and  repeal  preced- 
ing laws  :  but  this  maxim,  far  from  supporting,  defeats 
the  assertion. 

It  is  an  established  rule  of  law  that   statutes   have  no 
43 


330  OPINIONS  OF  EMINENT  LAWYERS, 

retrospect ;  they  look  forward  only  and  prescribe  for  the 
tune  to  come  ;  for,  upon  no  principle  of  natural  justice, 
can  a  man's  actions  fall  within  the  comisanee  of  a  law 
made  and  enacted  ex  post  facto  ;  but,  when  an  act,  origi- 
nally void, is  confirmed  by  an  after  act,  the  act,  thus  con- 
firmed operates  ab  inilio  andattaches  upon  the  time  mes- 
ne,  the  commenc't,  and  confirmation  of  it ;  and,  therefore, 
the  act  confirming  has  a  clear  retrospective  effect.  By 
the  act  of  1701-2  many  pains  and  penalties  are  imposed: 
the  first  act,  relied  upon  as  a  confirmation,  is  the  act  of 
1704 ;  three  years  and  upwards  then,  had  the  act  of 
1701-2  slept  without  the  sanction  of  a  law  :  in  that  inter- 
val of  time,  upon  a  supposition  of  the  nullity  of  the  act 
originally,  every  precept  might  have  been  lawfully  broke 
without  apprehension  of 'pains  and  penalties  ;  but  if  the 
act  of  1704  operates  as  a  confirmation,  every  such  breach 
in  the  interval,  though  clearly  a  legal  act  at  the  time, 
becomes  criminal  and  subject  to  the  punishment  imposed: 
this  is  contrary  to  natural  justice.  Hence  the  maxim, 
JSTova  constitiitiofuturisformam  dehelimponere  nonpraete- 
ritis ,  which,  in  substance  is,  statutes  have  no  retrospect: 
when  an  act,  therefore,  is  originally  void,  the  law  will 
never  work  a  confirmation,  by  construction  or  implica- 
tion. 

An  act  of  parliment,  indeed,  when  express  upon 
the  point,  I  admit  will  bear  down  the  law  and  principles 
of  justice  ;  but,  when  an  act  is  not  plain  and  express,  no 
exposition  can  prevail  which  is  repugnant  to  natural 
right  and  established  maxims. 

Among  the  old  statutes  we  meet  with  acts  recognized 
that  are  not  to  be  found  on  record ;  the  recognition  of 
them  by  succeeding  law  is  good  evidence  that  such  statute 
once  existed ;  they  are  received  and  prevail  as  statutes, 


OP  THE  COLONIAL  CONSTITUTIONS.  331 

not  as  lifted  up  or  animated  by  the  statutes  which  recog- 
nize (hem,  but  as  original  statutes,  made  and  enacted 
upon  a  constitutional  foundation  ;  the  recognition  operates 
only  as  presumptive  evidence  of  the  fact.  But  when  we 
can  go  back  and  lay  our  hands  upon  the  very  statute  it- 
self ;  when  we  can  trace  the  foundation  of  it  and  show 
it  originally  void  from  the  clearest  grounds,  what  avails 
a  naked  recognition  ?  Every  presumption  ceases  when  the 
contrary  is  proved. 

It  has  been  objected,  that,  upon  a  supposition  of  the 
nullity  of  the  act  of  1701-2  the  act  of  1700  must  be  exist- 
ing :  I  have  no  such  conception.  If  the  act  of  1701-2 
was  void  ab  imtio,  the  act  of  1700  was  in  force  when 
the  act  of  1704  was  made,  and  therefore  expressly  repeal- 
ed. But  then  it  is  objected,  that  the  saving  clause  of 
the  act  of  1704  prevents  the  repeal.  This  objection 
scarce  demands  the  ceremony  of  a  refutation.  The 
saving  clause  expressly  extends  to  such  rights  and  benefits 
only  had  accrued,  and  were  then  actually  vested.  Was  the 
present  claim  of  the  forty  per  poll  by  the  present  clergy, 
a  right  and  benefit  which  had  then  accrued  and  actually 
vested  ?  Surely  the  clergy  of  this  province  are  not  a  body 
politic  with  a  capacity  to  take  by  succession  ;  nor  is  the 
forty  per  poll  a  transmissible  right.  The  saving  clause, 
with  respect  to  the  rights  of  the  clergy,  was  spent  upon 
the  dropping  of  the  appointments  or  inductions  which 
were  then  in  being. 

My  opinion  then  is,  that,  upon  the  demise  of  King 
William,  the  assembly  of  this  province  was  dissolved  ; 
that  the  assembly  which  afterwards  met  and  enacted 


332  OPINIONS  OF  EMINENT  LAWYERS. 

the  contested  forty  per  poll  law,  being  called  without  a 
fresh  writ  of  summons,  was  illegally  and  unconstitiir 
tionally  convened  ;  that,  therefore,  no  obligation  can  re- 
sult from  the  said  forty  per  poll  act,  as  a  law. 

^iLL.  PACA. 
August  15,  1772. 

Fifth. 

Of  the  want  of  sovereignty,  in  the  Governor  and 
Council,  and  Representative  body,  when  met  in  As- 
sembly. 

(1.)  The  opinion  of  the  Attorney-General  Harcowrt, 
on  the  impropriety  of  an  act  of  recognition  of  Queen 
Anne,  by  the  Assembly  of  Maryland. 

As  to  the  act  entitled  "an  act  of  recognition,"  altho' 
the  said  act  be  an  instance  of  the  fidelity  of  the  inhabi- 
tants of  this  province  ;  yet,  in  regard  the  said  province 
is  entirely  dependent  on  the  Crown  of  England,  and  no 
such  law  has  been  thought  proper  to  pass  in  England, 
since  Her  Majesty's  accession  to  the  Crown  ;  I  humbly 
conceive  such  a  law  was  improper  to  be  passed  by  the 
assembly  of  this  province. 

SIM.  HARCOURT. 

Sept.  17,  1707. 


OP  THE  COLONIAL  CONSTITUTIONS.  333 

(2.)  The  opinion  of  the   Solicitor-General  Thomson, 
on  the  limited  effect  of  an  act  of  naturalization   Inj  an 

Assembly* 

To  the  Right  Honorable,  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  lordships'  commands,  signified 
to  me  by  William  Popple  Esq.,  the  10th  of  December 
last,  I  have  considered  the  bill  to  naturalize  Jacob  Ar- 
ents  and  his  three  children  in  New  Jersey ;  and  as  such 
naturalization  can  have  the  effect  to  give  them  a  right 
to  enjoy  the  privileges  of  natural  born  subjects  in  that 
province  only,  I  do  not  see  any  objection  to  the  passing 
this  act,  since  the  assembly  there  think  them  proper  ob- 
jects of  that  favor. 

WILL.  THOMSON, 

March  5,  1718,19.. 

(3.)  The  opinion  of  the  Attorney-General  Murray,  on 
the  question,  ivhether  au  assembly  can  impose  a  duty  on 
the  importation  of  convicts  into  a  colony. 

This  statute,  4th  Geo.  I.  c.  11,  for  the  more  effectual 
transportation  of  felons,  after  reciting,  that  it  had  been 


*  In  1GD8,  Governor  Nicolson,  of  Maryland,  wrote  the  board  of  trade,  "  that  he 
always  caused  a  proviso  to  be  inserted  in  the  acts  of  naturalization,  that  they  should 
not  operate  against  the  statute  of  7  and  8  Will.  III."  Governor  Seymour,  of  the 
same  province,  observed  to  the  board  of  trade,  upon  an  act  of  naturalization,  of  the 
Maryland  assembly,  1704,  '  this  is  only  intended  to  enable  the  parties  to  purchase 
lands,  but  not  to  qualify  them  to  trade,  or  to.  be  owners,  or  masters  of  ships,  it  being 
always  acknowledged,  that  any  act  of  naturalization,  made  in  this  province,  e*- 
tends  not  beyond  it,  being  circumscribed  by  the  7  and  8  Will.  3.  for  preventing 
frauds  in  the  plantation  trade." 


334  OPINIONS  OF  EiMINENT  LAWYERS. 

found  by  experience  that  the  punishments  inflicted  by 
the  laws  against  the  offences  therein  enumerated  had 
not  proved  effectual  to  deter  persons  from  those  crimes ; 
and  that  many  offenders  to  whom  royal  mercy  had 
been  extended  upon  condition  of  transporting  themselves 
to  the  West  Indies,  had  often  neglected  to  perform  that 
condition  ;  and,  that  in  many  of  His  Majesty's  colonies 
and  plantations  in  America,  there  was  great  want  of  ser- 
vants who  by  their  labor  and  industry  might  be  the 
means  of  improving  and  making  the  said  colonies  and 
plantations  more  useful  to  this  nation  ;  enacts,  that 
where  any  persons  shall  be  convicted  of  the  felonies 
therein  specified,  it  should  be  lawful  for  the  court  be- 
fore whom  they  were  convicted  to  order  such  offenders 
to  be  sent  to  some  of  His  Majesty's  colonies  and  planta- 
tions in  America,  for  the  several  terms  of  seven  years, 
fourteen  years,  or  for  life,  (according  to  their  respective 
crimes,)  and  to  conve}^  transfer,  and  make  over  such 
offenders,  to  the  use  of  any  person  who  shall  contract 
for  the  performance  of  such  transportation,  and  to  his 
assigns,  for  such  terms. 

It  also  enacts,  that  such  contractor  shall,  previous  to 
the  delivery  of  such  offenders  to  him,  to  be  transported, 
give  sufficient  security,  to  the  satisfaction  of  such  court, 
effectually  to  transport  such  offenders  to  some  of  His 
Majesty's  colonies  and  plantations  in  America  as  shall 
be  ordered  by  the  said  court,  and  procure  an  authentic 
certificate  from  the  Governor  or  chief  Custom-House  of- 
ficer of  the  place,  (which  certificate  they  are  thereby 
required  to  give  forthwith,  without  fee  or  reward,  as 
soon  as  conveniently  may  be,)  of  the  landing  of  such  of- 
fenders so  transferred,  as  aforesaid,  in  that  place  whereto 
they  shall  be  ordered,  (death  and  casualties  of  the  sea 


OP  THE  COLONIAL  CONSTITUTIONS.  335 

excepted.)  and  that  none  of  the  said  offenders  shall  be 
suffered  to  return  from  the  said  place  to  any  part  of 
Great  Britain  or  Ireland,  by  the  wilful  default  of  such 
contractor  or  his  assigns. 

This  statute  likewise,  6th  Geo.  I.  c.  23,  for  the  more 
effectual  transportation  of  felons,  enacts,  that  all  charg- 
es in  and  about  making  the  contracts,  taking  securities, 
and  conveying  of  felons,  in  order  to  be  transported, 
shall  be  borne  by  each  County,  tiding)  division,  liberty, 
or  place,  for  which  the  court  was  held  for  ordering  such 
felons  to  be  transported,,  and  directs  the  manner  of  the 
payment  of  it  by  their  treasurer  to  the  contractor. 

Agreeable  to  these  statutes,  such  contracts  for  the 
transportation  of  felons  have  hitherto  been  made,  the 
expenses  thereof  borne,  such  bonds  executed,  and  such 
certificates  of  their  landing  abroad  procured  ;  but  the 
merchant,  who  usually  contracts  upon  this  occasion,  has 
now  received  advice  from  his  correspondent  at  Mary- 
land, that  the  assembly  of  that  colony  have  imposed  a 
tax  of  forty  shillings  upon  every  convict  to  be  landed 
there. 

Such  vote  of  that  assembly  must  necessarily  produce 
one  of  these  two  consequences,  either  that  the  courts 
here  must  not  order  the  felons  to  be  transported  to 
Maryland,  or  any  additional  expense  of  forty  shillings 
per  head,  to  be  paid  by  the  treasurer  of  the  county,  &c, 
from  whence  such  felons  shall  be  transported,  and  which 
expense,  so  far  as  relates  to  London,  Middlesex,  and  the 
home  circuit,  ( from  which  places  the  transports  are 
very  numerous )His  Majesty  has  been  graciously  pleased 
to  take  upon  himself,  and-  to  pay  out  of  his  own 
purse. 

Quare. — Have   the  assembly  of  that,  or  any   other 


33G  OPINIONS  OF  EMINENT  LAWYERS. 

colony,  authority  to  pass  such  law  ;  and  if  they  have 
riot,  cannot  the  contractor's  agent  demand  the  certificate 
prescribed  by  the  statute  of  the  convicts  being  landed 
there,  without  payment  of  such  tax  'I 

I  am  of  opinion  that  no  colony  can  iilake  such  a  law, 
because  it  seems  to  me  in  direct  opposition  to  the  author 
ity  of  the  parliament  of  Great  Britain  ;  but  the  charter 
of  Maryland^  and  power  thereby  giveti  to  make  laws, 
is  not  stated.  There  always  is  a  restriction  that  they 
shall  not  be  contrary  to  the  laws  of  England  ;  but  this 
matter  should  be  set  right  by  a  proper  complaint  of  the 
law  itself,  and  Mr.  Sharpe  seould  be  acquainted  with  it, 
in  order  to  his  taking  the  proper  steps  to  have  the  law 
repealed  or  declared  null  ;  for  it  is  a  matter  of  public 
concern  and  derogatory  to  the  Crown  and  legislature  of 
Great  Britain.  By  the  same  reason  they  might  lay  a 
.duty  upon  or  even  prohibit  British  goods. 

WILL.  MURRAY. 

May  o,  ma 


(4.)  Mi'.  West's  opinion  on  the  quMtiOh,  when  the  six 
tnwil/is  commenced  wherein  the  Crown  might  repeal  the, 
act  of  tkc  Pennsylvania  Assembly. 

To  the  Ilight  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Secretary  Popple,  I  have  perused  the  char- 
ter of  Pennsylvania  transmitted  to  me,  and  particularly 
considered  those  clauses  therein  which  relate  to  the 
powers  of  enacting  laws  in  that  province  ;  and  in  an- 
swer to  the  first  question  which  your  Lordships  have 


OF  THE  COLONIAL  CONSTITUTIONS.         337 

been  pleased  to  propose  to  me,  I  am  of  opinion  that  there 
is  nothing  in  the  said  charter  by  which  the  inhabitants 
of  the  said  province  are  prohibited  the  re-enacting,  in 
their  general  assembly,  the  substance  of  any  laws  which 
may  at  any  time  have  been  disallowed  by  the  Crown. 

As  to  the  secord  question,  likewise  proposed  by  your 
Lordships,  I  am  of  opinion  that  the  six  months  during 
which  any  laws  passed  in  the  said  province  are  repeala- 
ble,  are  to  be  counted  from  the  time  of  their  being  de- 
livered to  the  privy  council ;  and  therefore  unless  the 
agents  of  that  province  do  deliver  duplicates  of  their 
laws  unto  the  privy  council  at  the  same  time  as  they 
are  delivered  unto  your  Lordships,  the  time  during 
which  they  remain  with  your  Lordships  can  make  no 
part  of  the  six  months  ;  but  the  said  six  months  must 
in  such  case  be  reckoned  from  the  time  they  are  deliv- 
ered to  the  privy  council,  subsequent),  to  your  Lordship's 
report. 

RICH.  WEST. 

March  24,  1718-19. 

(5.)  The  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Raymond  and  Yorke,  relating  to  the  time  when  the 
three  years  for  the  King's  approval  or  repeal  of  the  Mas- 
sachusetts acts  commenced. 

To  the  Right  Honorable   the  Lords   Commissioners  for 

Trade  and  Plantations. 

May  it  plea^  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  letter  from  Mr.  Popple,  of  the  31st  of  May  last, 
transmitting  to  us  the  enclosed  extract  of  the  charter  of 

the  Massachusetts-Bay,  and   also  of  the  Governor's  in- 
44 


338 


OPINIONS    OF  EMINENT  LAWYERS. 


cstructions,  and  thereupon  desiring  our  opinion  whether 
the  three  years  in  which  His  Majesty  is  either  to  re- 
peal or  confirm  the  acts  passed  there  are  to  be  deemed 
to  commence  from  the  time  that  they  are  revived  either 
by  the  board  of  trade,  or  by  one  of  His  Majesty's  princi- 
pal secretaries  of  state,  or  from  the  time  they  are  pre- 
sented to  His  Majesty  in  council  for  his  pleasure  there- 
upon: we  have  considered  the  sad  papers  and  the 
questions  referred  to  us  thereupon,  and  are  of  opinion 
that  the  three  years  allowed  by  this  charter,  either  for 
the  repeal  or  confirmation  of  such  laws,  are  to  be  taken 
to  commence  from  the  time  they  are  respectively  pre- 
sented to  His  Majesty  in  his  privy  council,  the  words 
of  the  clause  being  plain  and  express  for  that  pur- 
pose. 

ROB.  RAYMOND. 
June  2,  1722.  P.   YORKE. 

(6.)  The  opinion  of  the  Attorney-General,  Northey, 
of  the  bad  effects  of  temporary  acts  of  Assembly,  which 
in  his  judgment  could  only  be  remedied  by  an  act  of 
parliament^ 

To  the  Right  Honorable  the  Lords  Commissioners    of 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships7  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  several 
papers  transmitted  to  me,  and  herewith  returned,  and 
your  Lordships  having  demanded  my  opinion  to  your 
returning  an  answer  to  the  order  of  the  Lords  of  the  com- 
mittee of  the  council,  dated  the  5th  day  of  June  last, 
whereby  your  Lordships  were  desired  to  examine  and 


OP    THE    COLONIAL    CONSTITUTIONS. 

inform  yourselves,  how  and  by  what  grants  or  authorities 
the  plantations  in  America  do  claim  the  liberty  and  pow- 
er of  making  temporary  laws  to  continue  in  force  for  so 
short  a  time,  whereby  Her  Majesty's  prerogative  of  ap- 
proving or  disapproving  such  laws  is  evaded,  and  to  pro- 
pose to  that  committee  what  methods  you,  shall  judge 
most  proper  to  be  taken,  in  order  to  the  setting  aside 
those  practices  so  prejudicial  to  Her  Majesty's  interest  and 
the  trade  of  her  subjects  ;  and  I  do  most  humbly  certify 
your  Lordships,  that  as  to  such  laws,  which  are  made  in 
Her  Majesty's  plantations  not  granted  in  property  to  any 
subject,  the  mischief  complained  of  may  be  prevented 
by  Her  Majesty's  instructions  to  her  Governors  thereof, 
and  there  is  already  among  the  instructions,  a  copy  where- 
of was  sent  me,  a  full  instruction  for  that  purpose  ;  and 
therefore  all  that  I  conceive  necessary  to  be  further  done 
as  to  them,  is  to  require  a  due  observance  of  that  instruc- 
tion, by  Her  Majesty's  Governors. 

As  to  law  to  be  made  in  the  proprietary  plantations,  I 
am  of  opinion,that  mischief  cannot  be  remedied  there  but 
by  act  of  parliament  of  Great  Britain  ;  for  that  the  pro- 
prietors thereof  have  a  right  vested  in  them  of  the  power 
of  making  laws  granted  by  their  charters,  and  are  not, 
nor  can  now,  be  put  under  any  other  restraint  or  regula- 
tion, than  such  as  are  contained  in  their  respective  char- 
ters, but  by  act  of  parliament. 

As  to  Pennsylvania,  directions  were  given  for  perfect- 
ing the  agree meut  with  Mr.  Penn,  and  for  preparing 
an  act  of  parliament  to  supply  his  incapacity,  and  to  alter 
the  method  complained  of  as  to  temporary  laws,  and  the 
time  limited  for  transmitting  and  approving  laws  made 
there ;  but  during  the  last  session  of  parliament,  a  bill 
for  that  purpose  could  not  be  settled,  in  regard  of  some 


340  OPINIONS  OP  EMINENT  LAWYERS. 

differences  between  the  mortgagees   and  family  of  Mr. 
Penn. 

I  observe  that  there  is  not  any  obligation  by  charter 
to  return  the  laws  made  in  the  proprietary  plantations 
of  Connecticut  and  Rhode  Island  for  Her  Majesty's  ap- 
probation; aud,  therefore, -there  will  also  want  an  act 
of  parliament  to  oblige  them  to  transmit  their  laws,  and 
to  have  them  submitted  to  Her  Majesty's  approbation. 

EDW.   NORTHEY. 
July  22,  1714. 

(7.)  The  opinion  of  the  same  lawyer,  concerning  the 
illegality  of  the  legislative  proceedings  at  New  York, 
against  Bayard  and  Hutchins. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple  junr.,  I  have  considered 
of  an  act,  passed  at  New  York,  entitled  an  act  for  declar- 
ing the  illegality  of  the  proceedings  against  Col.  Nich- 
olas Bayard  and  Alderman  John  Hutchins,  for  pretend- 
ed high  treason,  and  for  reversing  and  making  null  and 
void  the  said  judgment  and  all  proceedings  thereon ; 
and  do  humbly  certify  your  Loruships,  that  Her  Majesty 
having,  by  order  in  council,  of  the  18th  of  Dec.  1704, 
directed  that  it  should  be  signified  to  the  Governor,  or 
Commander-in-chief  of  New  York,  for  the  time  being, 
that  Colonel  Nicolas  Bayard  and  Alderman  John  Hut- 
chins  do  enter  into  recognizance  on  record,  with  condi- 
tion that  they  will  not  bring  any  action  against  any 
person  who  had  acted  in  the  prosecution  of  them  by  order 


OF  THE  COLONIAL  CONSTITUTIONS.  341 

of  those  who  had  power  to  command  them,  or  that  a  new 
bill,  with  a  clause  of  indemnification,  be  transmitted  for 
Her  Majesty's  approbation;  and  it  not  appearing  that  such 
recognizance  was  given  and  the  act  now  transmitted  de- 
claring and  enacting  that  the  proceedings  and  prosecu- 
tions aginnst  them,  are  and  were  undue  and  illegal,  and 
no  clause  of  indemnification  being  in  the  same,  Her  Ma- 
jesty's order  not  being  complied  with,  the  same  objection 
remains  to  this  act  as  was  made  to  the  act  formerly  trans- 
mitted. 

EDW.    NORTHEY. 
March  14,  1705-6. 


(8.)  1  he  opinion  of  the  Attorney  and  Solicitor- 

YorJce  and  TaTbot^  on  the  power  of  the  Assembly  of 
Connecticut  to  make  laws. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands  signified 
to  us  by  two  letters  from  Mr.  Popple,  transmitting  to 
us  copies  of  the  charter  of  the  colony  of  Connecticut, 
and  of  the  memorial  of  John  Winthorp  Esq.,  hereunto 
annexed,  and  desiring  our  opinion  in  point  of  law, 
whether  the  said  colony  have  thereby  any  power  vested 
in  them  of  making  laws  which  affect  property,  or  wheth- 
er that  power  is  not  confined  to  the  making  of  by-laws 
only,  and  whether  if  they  have  not  the  power  of  making 
laws  affecting  property,  they  have  not  forfeited  their 
charter  by  passing  such  laws  ;  we  have  considered  the 
said  charter  and  memorial,  and  are  of  opinion,  that  by 
the  said  charter,  the  general  assembly  of  the  said  prov- 


342  OPINIONS  OF  EMINENT  LAWYERS. 

ince  have  a  power  of  making  laws  which  affect  proper- 
ty ;  but  it  is  a  necessary  qualification  of  all  such  laws, 
that  they  be  reasonable  in  themselves  and  not  contrary 
to  the  laws  of  England  ;  and  if  any  laws  have  been  there 
made,  repugnant  to  the  laws  of  England,  they  are  abso- 
lutely null  and  void, 

P.  YORKE. 
Aug.  1,  1730.  *C.  TALBOT. 

(0.)  2  lie  opinion  of  Mr.  JLanib  on  an  usurped  As- 
sembly in  South  Carolina. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords  ; 

In  pursuance  of  your  Lordships'  commands,  signified 
to  me  by  Mr.  Hill's  letter  of  the  2d  instant,  wherein 
you  are  pleased  to  desire  my  opinion  in  point  of  law,  up- 
on the  following  act,  passed  in  South  Carolina,  the 
12th  of  February,  1719,  1  have  perused  and  considered 
the  same,  viz  :  "an  act  for  regulating  the  courts  of  jus- 
tice." 

This  act  is  of  a  very  extraordinary  nature,  and,  was 
it  now  sent  over  for  His  Majesty's  approbation,  I  should 
make  many  objections  thereto;  but,  as  it  is  not  sent  over 
for  that  purpose,  I  shall  omit  those  objections  as  being 
unnecessary,  and  only  observe  how  this  act  appears  to 
me,  which  I  find  to  have  been  passed  in  the  time  this 
province  belonged  to  the  Lords  Proprietors,  but  the 
same  has  never  been  confirmed  by  them  or  the  Crown, 
And  the  time  it  passed  was  when  this  province  was  in 
great  confusion  and  the  inhabitants  opposed  the  power 
of  Mr.  Johnson,  the  Governor  then  appointed  by  the 


OP  THE  COLONIAL  CONSTITUTIONS.  343 

Lords  Proprietors,  and  chose  a  Gov.  themselves  who  passed 
this  act  without  any  authority  so  to  do ;  and  as  it  appears 
by  Governor  Glen's  letter,  without  the  proper  consent  of 
the  other  branches  of  the  legislature,  the  assembly  hav- 
ing before  that  time  been  dissolved  by  Mr.  Johnson, 
the  legal  Governor.  I  am  therefore  of  opinion,  that  this 
act  which  was  obtained  and  passed  by  an  usurped  authori- 
ty, should  not  be  considered  as  a  law ;  and  it  appears  by 
Governor  Glen's  letter,  it  has  not  been  considered  so  by 
the  practice  that  has  been  in  use  since  then  concerning 
matters  contained  in  the  said  act.  As  to  what  is  con- 
tained in  Governor  Glen's  letter,  about  removing  one  of 
the  assistant  judges  how  far  he  has  acted  in  that  respect 
conststent  with  his  commission  and  instructions  and 
whether  there  was  sufficient  reasons  given  for  so  doing, 
must  be  submitted  to  your  Lordships,  from  the  informa- 
tion he  has  given  you  on  that  head. 

MAT.  LAMB. 
May  30,  1750. 

(10.)     2  he  opinion  of  Mr.  Fane,  on  tlie  same  topic. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordshipsi  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  an  act  passed 
in  Carolina,  during  the  government  of  the  Lords  Pro- 
prietors, entitled  "  an  act  relating  to  the  biennial  and 
other  assemblies,  and  regulating  elections  and  members," 
by  which  act,  I  observe,  that  there  is  a  power  given  to  the 
assembly  of  this  colony  to  meet  without  the  consent  of 
the  Crown.  The  charter  granted  to  the  Lords  Proprie- 


344  OPINIONS    OP    EMINENT    LAWYERS. 

tors  does  not  in  the  least  warrant  a  proceeding  so  de- 
rogatory of  the  power  and  authority  of  the  Crown.  The 
power  of  calling  parliaments  is  admitted  to  be  an  inhe- 
rent privilege  in  the  Crown  ;  and  I  believe  this  is  the 
first  instance  that  such  an  attempt  has  been  made  to  de- 
prive the  Crown  of  it.  I  think  your  Lordships  should 
show  your  disapprobation  of  a  law,  which  in  so  high  a 
degree  encroaches  upon  the  prerogative  of  the  Crown ; 
but  I  must  observe  to  your  Lordships,  if  the  facts  are 
true  which  are  stated  in  the  memorial  of  Mr.  Smyth, 
the  Chief  Justice,  I  think  it  cannot  be  considered  as  an 
act  in  force,  not  having  received  a  due  confirmation, 
agreeable  to  the  rules  settled  by  the  Lords  Proprietors 
themselves. 

FRAN.  FANE. 
April  1,  1737. 

(11.)  Th?  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Harcourl  and  Mwmtayue,  on  similar  topics  of  in- 
competence, 

To  the  Right  Honorable   the  Lords   Commissioners  for 

Trade  and  Plantations. 
% 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  letter  from*  Mr.  Popple,  hereunto  annexed,  we 
have  considered  the  manner  of  passing  the  act  of  reve- 
nue, sent  to  Lord  Colepeper,  in  the  year  1679,  under  the 
broad  seal  of  England. 

We  have  likewise  perused  the  extract  of  the  commis- 
sion granted  to  the  said  Lord  Colepeper,  bearing  date 
the  6th  of  December,  1679,  and  the  extract  of  Colonel 
Hunter's  commission,  both  which  have  been  transmit- 


OF  THE  COLONIAL  CONSTITUTIONS.  345 

ted  to  us  by  Mr.  Popple,  and  by  them  it  appears  that 
the  method  now  used  in  passing  acts  for  Virginia,  is 
extremely  different  from  what  it  was  in  the  year  1679. 

By  Lord  Colepeper's  commission,  the  Governor  and 
council  at  Virginia,  are  to  lay  before  the  King  in  coun- 
cil here,  such  bills  as  shall  be  prepared  for  making- 
new  laws  for  that  colony,  in  order  to  have  the  sovereign's 
approbation  thereof ;  and  if  that  be  obtained,  such  bills 
are  to  be  transmitted  under  the  great  seal  of  England 
to  the  assembly  in  Virginia,  where  (if  what  shall  be  so 
tarnsmitted  be  assented  to  by  the  major  part  of  such  as- 
sembly) it  becomes  a  law  from  thenceforth,  until  it  shall 
by  repealed  by  the  like  method  and  authority  :  but,  by 
the  constitution  which  seems  now  to  be  established, 
the  general  assembly  in  Virginia  have  a  liberty  of  enac- 
ting among  themselves  such  laws  as  they  think  conven- 
ient and  the  same  are  to  be  looked  upon  as  in  force  until 
the  sovereign,  upon  a  transmission  hither,  shall  disap- 
prove the  same ;  provided  the  transmission  be  made 
within  three  months  after  the  act  passes  in  the  assem- 
bly at  Virginia,  for  tllT?  sovereign  here  either  to  confirm 
or  annul  the  same. 

The  former  of  these  ways  for  enacting  new  laws 
seems  to  be  the  rule  that  must  govern  in  the  present 
case,  concerning  the  said  act  of  revenue  which  passed 
in  1679  under  Lord  Colepeper's  government,  and  the 
method  that  was  then  taken  for  passing  thnt  not  ap- 
pears to  be  direct!}  opposite  to  the  said  method  that 
ought  then  to  have  been  pursued  ;  for  the  bill  was  orig- 
inally begun  here  in  England,  and  from  thence  trans- 
mitted under  the  great  seal  of  England  to  the  general 
assembly  in  Virginia  ;  there  the  bill  was  not  assented  to 

as   was  transmitted,   but  was  returned  back  with  two 

45 


346  OPINIONS    OP  EMINENT   LAWYERS, 

provisos  added  thereunto,  which  provisos  being  made 
part  of  the  said  bill  ought  regularly  to  have  been  wholly 
approved  of  or  rejected  by  King  Charles  tbe  Second  ; 
but  neither  one  or  the  other  was  directly  done,  for  the 
bill  with  one  of  the  provisos  was  ratified  and  confirmed 
by  the  said  King,  and  the  other  proviso  was  disallowed 
of  and  annulled.  On  consideration  whereof,  we  are 
humbly  of  opinion  that  the  ratification  and  confirma- 
tion of  the  said  act  with  one  of  the  provisos  only,  did 
become  null  and  void  by  the  disallowance  of  the  other 
proviso. 

If  any  part  of  her  present  Majesty's  revenue  subsists 
by  the  authority  of  this  act  only,  we  conceive  it  may 
be  for  Her  Majesty's  service  to  have  a  new  bill  pass  in 
the  general  assembly  at  Virginia  and  be  transmitted 
hither  for  Her  Majesty's  approbation,  pursuant  to  the 
method  prescribed  in  Colonel  Hunter's  commission, 
which  will  take  away  all  doubts  concerning  the  collect- 
ing and  payment  of  the  said  revenue. 

•     SIM.  HARCOURT. 
Dec.  23,  1707.  JAS.  MOUNTAGUE. 

(12.)  The  opinion  of  the  Attorney-General  Northey, 
that  care  should  be  taken  for  the  regular  transmission,  in 
order  to  the  consideration  of  the  Queen's  Councils. 

To   the   Right  Honorable   the  Lords  Commissioners  of 

Trade  and  Plantations, 

May  it  please  your  Lordships. 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  by  his  letter  dated  the 
14th  day  of  February  last,  I  have  perused  and  consid- 


OP  THE  COLONIAL    CONSTITUTIONS.  347 

ered  of  the  inclosed  act,  passed  at  Barbadoes  the  8th  of 
August,  1706,  entitled  "an  act  for  the  better  enabling 
the  executors  of  Christopher  Estwick  Esq.,  to  pay  the 
debts  of  the  said  Christopher  Estwick,"  in  which  act  it 
is  recited,  that  Richard  Estwick,  gentleman,  having  two 
sons,  Richard  and  Christopher,  and  two  daughters,  Eli- 
zabeth and  Anne,  devised  one  half  of  his  real  estate  to 
Richard  and  the  heirs  of  his  body,  with  cross  remaind- 
ers entail  among  them,  charged  with  the  payment  of  his 
legacies,  remainders  to  his  two  daughters  entail,  re- 
mainder in  fee  to  his  widow.  That  Richard,  the  eldest 
son,  dying  Avithout  issue,  the  whole  estate  came  to 
Christopher,  and  that  he  having  made  his  will  and 
thereby  made  some  provision  for  his  only  son  and  two 
daughters,  and  made  several  executors,  and  not  having 
fully  discharged  his  father's  legacies,  died  encumbered 
with  debts  to  the  amount  of  six  thousand  pounds ;  that 
the  said  Christopher  was  also  seised  of  several  negroes 
of  his  own  purchase  ;  that  the  creditors  had  commenced 
and  threatened  suits  against  his  executors  for  recovery 
of  their  debts,  whereby  his  personal  estate  and  negroes 
were  in  danger  of  being  wholly  exteiited  and  sold  to 
satisfy  them ;  and  if  the  negroes  are  taken  off  from  the 
plantation  whereof  he  was  seised  entail,  the  plantation 
would  become  of  little  value  to  the  son,  which  could  not 
be  prevented  by  any  way  but  by  applying  the  whole 
profits  of  the  estate  to  discharge  the  encumbrances,  and 
by  allowing  the  creditors  interest  in  the  mean  while  at 
ten  per  cent,  and  that  the  executors  did  conceive  that 
this  way  the  estate  would  in  all  probability  be  preserv- 
ed entire  and  be  cleared  by  the  time  the  son  should  come 
of  age  ;  and  therefore  it  is  enacted  that  the  executor  be 
empowered  to  apply  the  profits  of  the  whole  estate  tow- 


348  OPINIONS  OF  EMINENT  LAWYERS. 

ards  payment  of  debts  and  encumbrances,  and  to  allow 
the  creditors  ten  per  cent,  interest  till  paid  off:  which 
act,  I  am  of  opinion,  is  unreasonable,  in  regard  thereby 
the  entailed  estate,  which  descended  to  the  infant  and 
was  not  chargeable  with  debts  of  his  father,  is  charged 
with  the  same,  and  also  ten  per  cent,  interest,  and  no 
provision  whatsoever  is  reserved  for  the  son  during  the 
time  the  debts  are  clearing, 

I  beg  leave  to  take  notice  on  this  occasion  that  the 
Governors  of  the  plantations  do  not  observe  their  in- 
structions in  transmitting  the  laws  passed  in  the  planta- 
tions within  the  time  prescribed  for  them  to  transmit 
the  same.  It  appearing  in  this  particular  case  that  this 
act  was  passed  the  8th  of  August  1706,  and  not  received 
by  your  Lordships  till  the  12th  of  February  1711  ;  and 
therefore  I  submit  it  to  your  Lordships'  consideration, 
whether  the  Governors  of  plantations  are  not  to  be  put 
in  mind  of  taking  care  that  laws  passed,  in  Her  Majesty's 
plantations,  be  transmitted  for  Her  Majesty's  approba- 
tion in  due  time. 

EDW.  NORTHEY. 
April  25,  1712, 

(13.)  T  he  opinion  of  the  same  lawyer  on  the  Queen's 
poioer  of  repealing  tlie  acts  of  ih,",  Maryland  Assembly. 

To  the  Right  Honorable,  the  Lords  Commissioners  for 

Trade  and  Plantations, 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple  jr.,  I  have  considered  of  the  ques- 
tions mentioned  in  the  annexed  letter  ;  and  as  to  the 
first  of  them,  viz  :  whether  Her  Majesty  do  not  signi- 
fy her  pleasure  wirhin  eighteen  months,  the  suspending 


OP  THE  COLONIAL  CONSTITUTIONS.  349 

act  do  then   expire,  or  whether  the  same  do  remain  in 
force    after    the    eighteen  months,  until  Her  Majesty's 
pleasure  be  signified  ;  I  am  of  the  opinion,  the  suspend- 
ing is  to  continue    in  force  for  eighteen   months  unless 
sooner  determined  by  Her  Majesty's  pleasure  ;  and  the 
clause  that  no  prosecution  shall  be  until  the    expiration 
of  eighteen  months  or  until  Her  Majesty  shall  declare 
her  pleasure,  I  think,  can  have  no  other  construction ; 
and  therefore  in  all  events,  the    act  is    to  determine  at 
the  end  of  eighteen  months  without  Her  Majesty's  pleas- 
ure declared,  and  sooner  if  she  shall  so  please  to  declare  : 
and  as  to  the  second  question,  viz  :  whether  in  case  Her 
Majesty  do  signify  her  pleasure  for   the  continuance  of 
this  suspending  act  for  a  certain  time  after  the   expira- 
tion of  the  eighteen  months,  or  until  Her  Majesty's  fur- 
ther pleasure,  the  said  act  will  remain  in  force  accord- 
ingly, I   am  of  opinion,  all   the  power  reserved  to  Her 
Majesty  by  the  act  is  to  determine  the  act  within  eight- 
teen  months  ;  but  Her  Majesty  cannot  by  her  declara- 
tion  continue   longer     the    suspension   of    the  former 
act. 

EpW,    NoRTHEY, 

December  19,  1705, 

(14.)  2he  opinion  of  the  so/me  lawyer  on  the  unfitness 
of  an  act  of  the  Jamaica  Assembly,  as  inconsistent  with 
the  Queen's  prerogative. 

To  the  Eight  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  an  act  passed 
in  the  island  of  Jamaica,  entitled  "an  act  to  provide  an 


350  OPINIONS  OF  EMINENT  LAWYERS. 

additional  subsistence  for  Her  Majesty's  officers  and 
soldiers,  and  for  other  uses ;"  on  which  law  I  observe, 
that  the  parts  of  it  which  relate  to  quartering  and  sub- 
sisting Her  Majesty's  forces  are  temporary,  and  are  to 
expire  on  the  1st  of  November  next  ;  but  other  parts  of 
the  act  which,  I  apprehend,  intrench  on  Her  Majesty's 
prerogative,  are  perpetual. 

As  to  the  provisions  for  subsisting  the  soldiers  by  de- 
ficiencies, I  am  not  able  to  judge  whether  it  be  a  suffi- 
cient provision  or  not,  and  being  only  temporary,  if  the 
same  be  found  by  the  officers  of  Her  Majesty's  forces  to 
be  insufficient,  it  may  be  rectified  when  another  bill 
shall  pass  :  however,  the  clause  in  the  act  that  no  per- 
son have  any  share  of  the  money  to  be  raised  by  that 
act,  that  marries  any  inh  abitant  of  that  island,  is  un- 
kind. 

And  as  to  the  other  parts  of  the  act  which  are  perpet- 
ual, viz :  the  clause  that  disables  any  officer  or  soldier 
(the  Governor  exccpted)  to  use,  exercise,  or  enjoy  any 
civil  commission,  power,  place,  or  authority,  or  in  the 
militia  in  that  island ;  and  the  clause  that  lays  a  penalty 
on  all  persons  not  being  native  born  subjects  of  England, 
Ireland,  or  the  plantations  in  America,  that  shall  use, 
exercise,  or  enjoy  any  commission,  civil  or  military, 
(except  in  Her  Majesty's  forces  in  that  island  under  her 
pay):  I  am  of  opinion,  tlnry  are  both  against  Her  Maj- 
esty's prerogative,  and  the  latter  carries  the  disability 
further  than  what  is  done  by  the  act  of  the  7th  William, 
which  is  restrained  to  the  courts  of  law  and  the  treasury, 
and  that  matter  is  not  concerned  in  th*e  title  of  the  act, 
and  therefore  that  this  act  is  not  fit  to  be  confirmed. 

EDW.  NORTHEY. 

July  9th,  1706. 


OF  THE  COLONIAL  CONSTITUTIONS.  351 

Sixth. 

Of  the  various  modifications  of  the  constituted  As- 
sembly's accustomed  powers. 

(1.)  The  opinion  of  the  Attorney^Greneral  Raymond 
that  an  act  of  Assembly  has  the  same  effect  in  the  Colo- 
ny as  an  act  of  parliament  has  in  the  mother  country. 

To  the   Right  Honorable  the  Lords  Commissioners   of 
Trade  and  Plantations. 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter,  bearing  date  the  24th  of 
July  last,  I  have  considered  of  an  act  which  passed  in 
Barbadoes  the  1st  of  August  1712,  entitled  "an  act  to 
enable  and  empower  the  surviving  acting  executor  of 
Johanna  Parris,  widow,  deceased,  to  sell  and  dispose  of 
certain  lands,  buildings,  and  negro-slaves,  devised  by  the 
last  will  and  testament  of  the  said  Johanna  Parris,  to, 
and  for  the  use,  and  purposes  therein  mentioned  ;"  and 
though  this  act  is  not  drawn  as  such  acts  are  usually 
drawn  in  England,  such  acts  here  usually  vesting  the 
lands  in  the  person  who  is  to  sell,  and  this  act  only 
giving  the  party  a  power  so  to  do  ;  and  though  the  sale 
is  to  made  by  fcm?  covert^  yet  I  take  it,  it  will  be  suffi- 
cient in  an  act  of  assembly,  which  is  of  the  same  effect 
there  as  an  act  of  parliament  here  ;  therefore  I  have  no 
objection  in  point  of  law  against  Her  Majesty's  con- 
firming the  said  act,  if  JHer  Majesty  shall  graciously  be 
pleased  so  to  do.  . 

ROBT.  RAYMOND. 

August  19,  1713. 


352  OPINIONS  OF  EMINENT  LAWYERS. 

(2.)  The  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Murray  and  Llwjd,  on  the  ^lsual  privileges  of  the 
Jamaica  A-s-semlly. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations. 

-    My  Lords  ; 

Pursuant  to  your  Lordships'  desire,  signified  to  us  by 
Mr.  Pownall  in  his  letter  of  the  15th  inst.,  setting  forth 
that  your  Lordships  having  lately  received  a  letter  from 
Mr.  Knowles,  Governor  of  the  island  of  Jamaica,  in 
which  he  acquaints  your  Lordships  with  his  having 
dissolved  the  assembly  there  for  calling  in  question  His 
Majesty's  right  of  issuing  writs  for  electing  members  to 
sit  in  the  assembly  without  waiting  for  a  message  first 
from  them  ;  and  inclosing  to  us  an  extract  of  the  said 
letter,  together  with  a  copy  of -the  resolution  of  the  as- 
sembly, upon  which  that  dissolution  was  founded, (which 
extract  and  copy  are  herewith  returned,)  and  desiring 
our  opinion  whether  the  assembly  were  warranted  in 
coming  to  that  resolution,  and  whether  it  be  consistent 
with  His  Majesty's  rights  and  prerogative  ;  we  have 
considered  thereof,  and  do  not  think  ourselves  suffi- 
ciently informed  to  give  an  opinion  upon  the  question 
so  generally  stated,  because  it  depends  upon  the  consti- 
tution of  the  assembly  of  Jamaica  and  the  usage, 
whether  whilst  the  asssmbly  is  sitting  all  vacancies 
should  first  be  signified  by  themselves  to  the  Governor  ; 
and  yet  the  case  must  frequently  have  happened.— 
Nothing  is  transmitted  to  us  relative  to  the  particular 
constitution  or  usage  in  Jamaica  upon  this  point  ;  and 
there  are  no  parties  to  whom  we  could  send  for  infor- 
mation. 


OF  THE  COLONIAL  CONSTITUTIONS.  353 

What  the  assembly  claims  seems  analagous  to  the 
law  and  practice  here  ;  but  it  does  not  from  thence  nec- 
essarily follow,  that  it  is,  or  ought  to  be,  the  law  there  ; 
that  must  depend  upon  their  own  constitution  and  usage, 
which,  without  further  light,  we  cannot  venture  to 
give  an  opinion  upon. 

W.  MURRAY. 

April  29,  1755.  RICH.  LLOYD. 

(3.)  2  lie  opinion  of  the  Attorney  and  Solicitor-Gene- 
ral, Yorke  and  Talbot,  on  the  general  policy  applicable 
to  the  same  Assembly. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands  signified 
by  Mr.  Popple,  referring  to  us  two  acts  of  assembly 
passed  in  Jamaica  in  April  1728,  entitled  "an  act  for 
granting  a  revenue  to  His  Majesiy,  his  heirs  and  suc- 
cessors, for  the  support  of  the  government  of  this  island 
and  for  reviving  and  perpetuating  the  acts  and  laws 
thereof;'7  :;an  act  to  oblige  the  several  inhabitants  of 
this  island  to  provide  themselves  with  a  sufficient  num- 
ber of  white  people,  or  pay  certain  sums  of  money  in 
case  they  shall  be  deficient,  and  applying  the  same  to 
several  uses,  for  repairing  the  wall  of  Port  Royal  ;"  for 
our  opinion  thereupon  in  point  of  law,  and  transmit- 
ting the  draught  of  a  bill  for  raising  a  revenue  in  Jamai- 
ca, which  was  formerly  prepared  here,  to  be  passed  into 
a  law  in  that  island  ;  as  likewise  a  copy  of  the  instruc  - 
tions  given  to  Major-General  Hunter  for  his  direction  in 

this  matter ;  we  have  considered  the  said  acts,  together 

46 


354  OPINIONS  OF  EMINENT  LAWYERS. 

with  the  said  draught,  and  find  sevral  variances  therein; 
but  no  question  in  point  of  law  appears  to  arise  upon 
any  of  those  variances,  except  in  the  particulars  follow- 
ing, viz  ; 

1st.  By  the  draught  it  is  provided,  that  where  goods 
or  merchandizes  should  be  landed  without  the  presence 
of  the  proper  officer,  or  paying  or  securing  the  duties, 
the  same  should  be  forfeited,  and  should,  and  might  be, 
seized  by  the  receiver-general  or  any  person  authorized 
by  him. 

By  virtue  of  which  clause,  when  passed  into  a  law,  if 
any  goods  should  be  landed  contrary  thereto,  an  infor- 
mation, by  way  of  devenerunt,  might  be  maintained  for 
the  value  thereof  without  an  actual  seizure  of  such 
goods. 

By  the  act  sent  over  it  is  provided,  that  goods  so  land- 
ed, being  seized  by  the  receiver-general,  or  any  person 
authorized  by  him,  shall  be  forfeited  ;  in  consequence  of 
which  alteration  no  forfeiture  can  arise  without  an  actu- 
al seizure  of  the  goods,  which  is  often  impracticable  in 
cases  of  clandestine  importations  ;  and  without  a  forfeit- 
ure, no  devcnerunt  can  be  brought  for  the  value  of  the 
goods. 

2d.  In  the  draught  a  clause  is  inserted,  obliging  the 
receiver-general  of  the  island  to  deliver  his  accounts 
within  a  limited  time  to  the  auditor-general  of  the  plan- 
tations, to  be  passed  by  him  and  transmitted  to  the  lords 
of  the  treasury  of  Great  Britain  ;  and  the  doing  of  this 
is  made  part  of  the  condition  of  his  bond,  which,  by  the 
draught  he  is  directed  to  give. 

In  the  act  sent  over  both  these  provisions  are  omitted 
and  instead  thereof  a  proviso  is  inserted  that  nothing  in 
that  act  shall  prevent  the  receiver-general's  account 


OP    THE  COLONIAL  CONSTITUTIONS.  355 

with  the  auditor-general  of  the  plantations  or  such  oth- 
er person  in  the  kindom  of  Great  Britain  as  His  Majes- 
ty, his  heirs,  or  successors,  shall  think  fit  to  appoint  for 
that  purpose. 

Upon  which  we  beg  leave  to  observe,  that  by  the  act 
thus  altered  110  new  obligation  is  laid  upon  the  receiver- 
general  to  account  before  the  auditor  of  the  plantations, 
but  his  being  obliged,  or  not  obliged,  to  render  such  ac- 
count, will  depend  upon  what  was  the  duty  of  his  office 
before  this  act  passed ;  of  which  we  can  form  no  judg- 
ment, the  constitution  or  appointment  of  that  officer  not 
having  been  laid  before  us. 

3d.  By  the  draught  it  is  enacted,  that  the  act  to  be 
passed  in  pursuance  of  that  draught,  and  all  other  acts 
of  assembly,  formerly  enacted  and  made  to  be  of  equal 
continuance  and  to  expire  together  with  the  revenue 
act  therein  mentioned,  and  not  thereby  altered  or  re- 
pealed, should  be  perpetual ;  and  also,  all  such  laws  and 
statutes  of  England  as  by  usage  and  practice  had  been 
accepted  and  received  as  laws  in  Jamaica,  should  be,  and 
continue,  laws  of  Jamaica. 

By  the  act  transmitted  it  is  enacted,  that  all  the  acts 
and  laws  of  Jamaica  which  determined  on  the  1st  day  of 
October  1724,  and  not  thereby,  or  by  any  former  act  of 
the  Governor,  coitncil,  and  assembly,  in  force  at  the  time 
of  passing  the  said  act,  now  transmitted,  altered,  or  re- 
pealed, shall  be  revived  and  made  perpetual  ;  and  also 
all  such  laws  and  statutes  of  England,  as  have  been  at 
any  time  esteemed,  introduced,  used,  accepted,  or  re- 
ceived as  laws  in  Jamaica,  shall  be,  and  continue,  laws 
of  Jamaica  for  ever. 

The  first  branch  of  both  these  clauses  relates  to  acts  of 
assembly  passed  in  Jamaica,  and  though  they  vary  in 


356  OPINIONS  OF  EMINENT  LAWYERS. 

expression,  yet  we  apprehend  there  is  not  any  material 
difference  in  the  sense, 

The  latter  branch  relates  to  such  parts  of  the  laws  of 
England  as  are  intended  to  be  continued  laws  in  Jamai- 
ca :  and  in  this,  the  act  sent  over  materially  differs 
from  the  draught,  by  leaving  out  the  words,  as  by  usage 
and  practice,  have  been  accepted  and  received  as  laws 
in  Jamaica,  and  instead  thereof,  inserting,  as  have  been 
at  any  time  esteemed,  introduced,  used,  accepted,  or  re- 
ceived as  laws  in  this  island,  which  last  descripton  is  so 
loose  and  uncertain  that  it  will  be  very  difficult  to 
know  what  laws  of  England  are  thereby  made  laws  of 
Jamaica,  and  what  are  not ;  and  seems,  therefore,  to  be 
liable  to  the  same  inconveniences  as  former  clauses  of 
the  like  nature  which  have  been  rejected. 

Upon  the  second  act  no  question  of  law  arises,  and  it 
will  expire  upon  the  29th  day  of  this  month, 

P.  YORKE, 

March  25,  1729,  C.  TALBOT. 

(4.)  1  lie  opinion  of  Mr.  l^'ane,  on  the  general  policy 
of  the  same  Assembly. 

To  the  Right   Honorable   the  Lords   Commissioners  of 

Trade  and  Plantations. 

% 

My  Lords ; 

.  In  obedience  to  .  your  Lordships'  commands,  I  have 
considered  the  act  passed  in  Jamaica,  for  foreclosing 
Smith,  his  heirs,  executors,  and  assigns,  from  the  equity 
of  redemption  of  a  certain  plantation,  called  Pero  Plan- 
tation, if  the  mortgage  money  be  not  paid  to  Mr. 
King  and  his  wife,  before  the  30th  of  May,  1725 ;  and 
the  papers  to  me  referred  in  relation  to  that  affair.  I 


OF    THE    COLONIAL    CONSTITUTIONS.  357 

apprehend,  I  need  not1'  trouble  your  Lordships  with  a 
state  of  the  case,  as  it  stands  upon  the  act,  it  being  so 
fully  known  to  you  already. 

I  think,  in  general,  that  such  laws  would  be  greatly 
dangerous,  and  that  the  legislature  should  rarely  inter- 
fere in  matters  of  private  right  without  the  greatest  ne- 
cessity ;  but  I  cannot  see  any  great  inconvenience  in 
this  case,  but  rather  a  necessity,  indeed,  for  the  passing 
this  law,  because  of  the  act  which  Mr.  West  mentions 
in  his  report,  that  obliges  all  owners  of  land  in  this  part 
of  the  island,  to  settle  their  plantations  within  two 
years,  under  the  forfeiture  of  their  respective  interests 
to  the  King. 

But  what  I  chiefly  ground  my  opinion  upon,  is  the 
memorial  itself  of  Gordon's  which  containing  only  gene- 
ral allegations  and  unsupported  by  any  proof  or  evi- 
dence that  I  can  take  notice  of,  will  be  in  this  case  a  good 
foudation  for  confirming  this  act.  For  the  memorial 
says,  1682  Sir  Thomas  Lynch  sold  this  plantation  to 
Pope  and  Harbin,  which  was  the  same  year,  the  act 
says,  Smith  made  the  reconveyance  of  these  lands  to  Sir 
Thomas  Lynch.  It  likewise  says,  that  the  greatest  part 
of  the  purchase  money  was  paid  by  Pope  and  Harbin 
to  Lady  Cotton  ;  but  I  beg  leave  to  observe  that  it  does 
not  set  forth  how  much,  nor  at  what  time  this  was  done. 
The  memorial  likewise  says,  that  Pope  conveyed  a  moi~ 
ety  of  his  share  to  Peers,  but  doth  not  say  when  ;  and 
that  he  mortgaged  the  other  part,  but  at  what  time,  or 
whether  it  was  to.  Sir  Thomas  Lynch  or  Lady  Cotton, 
doth  nowhere  appear  ;  and  yet  this  mortgage  is  made 
the  title  to  Lady  Cotton,  to  enter  and  take  the  profits 
all  this  time. 

It  seems  a  little   odd    she  should  have  been  suffered 


358  OPINIONS  OF  EMINENT  LAWYERS. 

to  maintain  this  disseisin  and  usurpation  on  Harbin  and 
his  heirs  and  the  other  memorialists,  and  nothing  be 
done  in  this  length  of  time  except  a  bill  lately  brought 
and  that  not  prosecuted. 

So  that  upon  comparing  the  act  and  memorial  togeth- 
er, there  doth  not  seem  to  be  a  sufficient  title  set  up,  or 
allegations  proved,  to  prevent  the  confirmation  of  this 
law  ;  for  the  act  extends  to  foreclose  only  the  repre- 
sentatives and  assigns  of  Smith,  no  other  right  is  con- 
cluded, and  the  memorialist's  right  is  derived  wholly 
from  Sir  Thomas  Lynch,  and  is  no  ways  dependent  on 
that  of  Smith  ;  and  I  take  it  to  be  a  settled  rule  in  the 
construction  of  acts  of  parliament,  that  where  land  is 
even  given  to  the  King,  or  where  a  conveyance  by  a 
statute  is  made  good  against  a  particular  person,  all 
other  men's  rights  are  saved,  of  course,  without  any 
proviso. 

The  memorialists,  after  the  passing  this  act,  may  be 
at  liberty  to  controvert  Mr.  King's  title;  but  there  may 
be  very  great  danger,  at  least  great  inconvenience,  in 
not  having  this  plantation  settled,  I  think  this  law, 
which  is  to  further  that  end,  may  be  very  safely  passed; 
and  that  this  case  is  out  of  the  common  reason  of  the 
legislatures'  leaving  the  decisions  of  property  to  the  le- 
gal course  of  justice. 

Mr.  West,  ic  his  report  upon  this  matter,  is  of  opinion 
that  all  facts  alleged  in  the  colony  bills  must  be  taken 
to  be  true.  This  rule  may  generally  be  true,  but  I 
think  in  adversary  bills  of  this  nature, -which  are  only 
the  party's  own  state  of  the  case,  this  rule  should  not  be 
extended  further  than  the  particular  facts  mentioned  ; 
but  I  apprehend,  it  ought  not  to  be  presumed  that  eve- 
ry thing  is  fully  stated  and  that  all  facts  and  circuni- 


OF  THE  COLONIAL  CONSTITUTIONS.         359 

stances  are  disclosed  that  are  necessary  to  give  a  per- 
fect insight  into  the  merits  of  the  bill ;  for  though  the 
facts  alleged  may  be  true,  yet  other  facts  my  be  sunk 
which  may  alter  the  case  and  defeat  the  allegations  of 
the  bill ;  neither  do  I  think  it  safe  to  argue  from  the 
analogy  and  reason  of  penal  laws  in  the  plantations  to 
a  bill  of  this  kind,  because  rules  of  state  and  policy  are 
no  proper  measure  to  adjust  private  property.  But  for 
the  reasons  I  have  before  offered,  I  can  see  no  incon- 
venience from  passing  this  act  ;  it  is  doing  no  more 
than  a  court  of  equity  would  do  after  such  a  length  of 
time  ;  and  if  the  memorialists  are  purchasers  under 
Sir  Thomas  Lynch,  they  are  not  affected  vby  this  bill, 
but  have  a  proper  remedy  at  law. 

FRAN.  FANE.  v 
March  3,  1725-6. 

(11.)  Tli'i  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Ryder  and  Strange,  on  acts  of  North  Carolina,  that 
were  not  Finding  either  on  the  Crown  or  people. 

To  the  Right  Honorable    the  Lords    Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  in  his  letter  of  the  17th  instant, 
transmitting  to  us  the  annexed  copies  of  two  acts  of 
North  Carolina  and  the  annexed  answer  to  certain 
qucerles ;  we  have  considered  the  same,  and  likewise  an 
extract  from  the  general  constitution,  No.  83,  stated 
in  a  late  case  from  your  Lordships,  wherein  it  is  ordered 
that  "  No  act  or  order  of  parliament  shall  be  of  any 
force,  unless  it  be  ratified  in  open  parliment  during  the 


360  OPINIONS  OP  EMINENT  LAWYERS. 

• 

same  session,  by  the  palatine  or  his  deputy  and  three 
more  of  the  Lords  Proprietors  and  their  deputies,  and 
then  not  to  continue  longer  in  force  but  till  the  next 
bienniel  parliament,  unless  in  the  mean  time  it  be  rati- 
fied under  the  hands  and  seals  of  the  palatine  himself 
and  three  more  of  the  lords  proprietors  themselves,  and 
by  their  order  published  at  the  next  biennial  parlia- 
ment ;"  and  upon  the  whole  circumstances  of  the  case 
relating  to  these  acts,  we  are  of  opinion,  that  they  are 
not  binding  either  on  the  Crown  or  people. 

D.  RIDER. 
March,  1737-8.  J.  STRANGE. 

(4.)  The  opinion  of  Mr.  West,  on  t't.e  mode  of  granting 
ly  the  JSarlad'tes  Assembly,  and  the  means. 


To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 

and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  an  act  passed  in  the  island  of 
Barbadoes,  entitled  "An  act  for  laying  an  imposition  or 
duty  on  wines  or  other  strong  liquors  imported  into  this 
island,  in  order  to  raise  money  to  carry  on  the  fortifica- 
tions, for  payment  of  such  persons  as  are  or  shall  be  em- 
ployed at  the  public  charge,  and  for  such  other  public 
uses  as  are  herein  contained."  In  relation  to  which  I 
would  beg  leave  to  lay  some  observations  before  your 
Lordships. 

I  take  it  to  be  a  general  rule  in  the  West  Indies,  that 
all  taxes  or  impositions  whatsoever,  to  be  raised  from  or 
laid  upon  the  subjects,  ought  to  be  enacted  in  the  par- 
ticular bills  b}r  which  they  are  created,  by  way  of  grant 


OF  THE  COLONIAL  CONSTITUTIONS.         361 

His  Majesty,  his  heirs,  and  successors  ;  but  in  this  act 
there  is  no  mention  whatsoever  made  of  the  Crown,  nor 
is  there  any  grant  of  any  thing  to  it :  it  is  only  said, 
that  from  and  after  the  publication  of  it,  such  and  such 
particular  duties  shall  be  paid  the  treasurer  of  the  island 
for  the  time  being  ;  and  in  consequence  of  this  omit- 
ting the  King  in  their  granting  part  of  the  bill,  His 
Majesty  seems  to  be  included  from  any  intermeddling 
with  the  collection  or  receipt  of  the  money.  For  the 
general  assembly  themselves  take  upon  them,  in  the 
body  of  the  act,  to  nominate  and  appoint  a  treasurer  and 
comptroler  of  this  duty ;  and  in  case  any  vacancy  should 
happen  in  those  offices  by  the  death  of  any  persons 
named  in  the  said  act,  the  Governor  is  entrusted  with 
the  power  of  appointing  persons  to  officiate  in  their 
stead,  during  the  space  of  one  month  only,  and  no  long- 
er. So  that  in  case  any  of  those  officers  happen  to  die, 
a  Governor  must  either  suffer  this  duty  to  sink  and  be 
lost,  or  must  summon  a  general  assembly  to  meet,  for 
them  to  nominate  a  new  treasurer  and  comptroller. — 
How  far  this  method  of  proceeding  is  consistent  with 
the  King's  prerogative  and  instructions  to  the  Gover- 
nor, I  submit  that  entirely  to  your  Lordships. 

Your  Loruships  will  be  also  pleased  to  observe,  that 
the  money  intended  to  be  raised  by  this  act,  is  to  be 
raised  by  an  imposition  on  strong  liquors  imported  into 
that  island.  Beer,  ale,  cider  and  perry  (which  are  the 
growth  of  Great  Britain)  are  to  pay  a  very  considerable 
duty.  How  far  such  an  imposition  upon  the  British 
trade  is  to  be  countenanced,  I  submit  entirely  to  your 
Lordships. 

Besides  what  I  have  now  mentioned  to  your  Lord- 
ships relating  to  the  subject  matter  of  the  duty,  and  to 
47 


362  OPINIONS  OF  EMINENT  LAWYERS. 

the  manner  of  granting  it,  I  must  beg  leave  to  mention 
some  other  particulars  to  your  Lordships  relating  to  the 
manner  of  collecting  this  duty:  it  is  provided  (inter  alia) 
that^for  securing  the  payment  of  this  duty,  the  importer 
(where  the  sum  of  money  to  be  paid  exceeds  ten  pounds) 
may  give  bonds  for  the  security  of  the  money  payable, 
which  bonds  are  to  be  taken  in  the  name  of  the  treasu- 
rer for  the  time  beiug,  which  is  the  natural  consequence 
of  the  duty  not  being  granted  to  the  King,  because  if  it 
had  been  granted  to  the  Crown  the  bonds  ought  to  be 
taken  to  the  Crown,  and  then,  by  prerogative,  those 
bonds  would  have  the  effect  of  judgments,  and  execu- 
tions might  be  taken  out  immediately  npon  them  ;  but 
yet  though  they  seems  industriously  to  avoid  mention- 
ing the  King  throughout  the  whole  act,  yet  they  think 
it  reasonable  to  communicate  that  prerogative  to  their 
treasurer,  and  provide  that  these  bonds  given  to  the 
treasurer,  for  the  time  being,  shall  be  of  as  strong  and 
operative  a  nature  as  if  they  had  been  taken  to  the 
Crown  ;  for  in  case  any  persons  shall  not  perform  the 
consideration  of  his  bond,  the  treasurer  is  empowered  to 
issue  out  his  warrant  for  execution  against  the  persons 
in  arrear,  and  this  power  is  so  absolutely  vested  in  him, 
that  in  case  of  any  misuser  of  it,  I  do  not  see  that,  by 
this  act,  the  party  agrieved  can  have  any  relief  by  ap- 
plication to  any  court  of  justice  within  the  island  :  I 
would  also  observe  that  in  the  issuing  of  those  war- 
rants there  is  a  deviation  from  the  common  law  that  I 
do  not  well  understand.  The  proper  officer  to  whom 
writs  or  warrants  of  execution  ought  to  be  directed  is 
the  marshal  there,  as  the  sheriff  is  here  at  home,  but 
these  warrants  from  the  treasurer  are  to  be  directed  to 
any  two  constables,  who  are  expressly  to  proceed  in 


OF  THE  COLONIAL  CONSTITUTIONS.  363 

the  same  manner  as  marshals  are  to  proceed  at  common 
law  ;  and,  therefore,  I  do  not  see  any  reason  why  the 
execution  of  these  warrants  should  be  taken  out  of  the 
hands  of  those  officers  whom  the  common  law  appoints 
for  that  purpose. 

[  must  further  observe  to  your  Lordships,  that  for 
the  better  discovery  of  any  frauds  that  may  have  been 
committed  in  breach  of  this  act,  the  treasurer  and  comp- 
troller are  empowered  (and  that  without  any  informa- 
tion given  upon  oath  or  otherwise)  to  summon  and  ex- 
amine any  persons  whom  they  in  their  discretion  may 
suspect  of  having  acted  contrary  to  this  act  ;  and  those 
persons  suspected  are  to  answer,  upon  oath,  to  all  such 
interrogatories  as  they  shall  think  fit  to  put  to  them,  re- 
lating to  the  landing,  removal,  or  importation  of  any 
strong  liquors,  &c.  It  is  true  that  tha  penalties  they 
are  to  be  under  (in  case  of  refusing  to  answer)  are  not 
so  great  as  in  case  of  conviction  by  other  evidence  ; 
but  I  submit  to  your  Lordships  whether  it  is  not  always 
unreasonable  for  any  man,  in  any  case  to  be  obliged, 
under  any  penalty  whatsoever,  to  accuse  himself,  the 
tempation  to  perjury  is  so  very  great  in  such  cases,  and 
the  oaths  e x  offici)  (of  the  nature  of  which  this  is)  have 
been  so  often  and  so  much  condemned,  that  I  think  I 
need  not  say  any  thing  further  concerning  it. 

Another  observation  which  I  shall  lay  before  your 
Lordships  is  the  penalty  which  is  enacted  upon  the  re- 
moving or  landing  any  liquors  contrary  to  the  act. — 
The  penalty  is  not  restrained  to  any  strong  liquors  that 
should  be  removed  or  landed  by  the  consent  or  privity 
of  the  master  or  owner  of  each  respective  uessel,  but  it 
is  worded  in  so  loose  a  manner,  as  e.  g.  no  wines  or 
strong  liquors  shall  be  removed  or  conveyed,  &c.  or  land- 


364  OPINIONS    OF  EMINENT  LAWYERS. 

ed,  &c.  under  the  penalty  of  forfeiting,  &c.  so  that  for 
aught  I  can  see  to  the  contray,  a  common  sailor's 
running  a  dozen  of  beer  on  shore  may  make  the  owner 
of  the  vessel  and  cargo  liable  to  the  penalty  of  this  act, 
which  is  no  less  than  the  forfeiture  of  all  such  wines  or 
other  strong  liquors  as  shall  be  attempted  to  be  landed, 
or  the  value  thereof  in  money,  together  with  the  ship 
or  vessel  in  which  they  were  imported,  with  all  her 
guns,  tackle,  furniture,  ammunition  and  apparel.  I 
think  I  need  not  say  any  thing  more  concerning  the 
unreasonableness  of  this  penalty  than  barely  to  state  it. 

The  observations  which  I  have  now  laid  before  your 
Lordships  contain  all  the  objections  which  I  have  to 
this  act  ;  and,  upon  consideration  of  them,  your  Lord- 
ships will  determine  whether  it  will  be  proper  to  be 
passed  into  a  law  or  not. 

RICH.  WEST. 

January  21,  1723-4. 

(7.)  Mr.  Wests  objections  to  various  acts  of  the  Bar- 
dadoes  Assembly,  showing  their  wifitness. 

To  the  Right  Honorable  the  Lords  Commissioners   of 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
unto  me  by  Mr.  Secretary  Popple,  I  have  perused  the 
several  following  acts  passed  in  the  island  of  Barbadoes 
in  the  years  1717  and  1718  ;  and  as  to  the  several  acts, 
of  which  the  titles  are  as  follows,  viz:  "an  act,  ena- 
bling the  representatives  of  the  parish  of  Christ  Church 
to  sell  six  acres  and  thirty  perches  of  land  in  the  said 
parish,  formerly  the  land  of  Philip  Howell.  deceased" 


OP  THE  COLONIAL  CONSTITUTIONS.  365 

(no  objection);  "  a  supplemental  act  to  the  act  laying 
an  imposition  or  duty  on  all  sugars,  molasses,  rum,  cot- 
ton and  ginger,  imported  into  this  island,  which  are  not 
the  natural  product  and  manufacture  of  some  of  His 
Majesty's  colonies" (no  objection);  "an  act  to  prohibit 
masters  of  ships  and  other  vessels  from  landing  aliens 
or  foreigners  in  this  island  without  a  license  for  so  doing 
from  the  Governor^  or  Commander-in-chief  for  the  time 
being"  (no  objection)  ;  "an  act  for  providing  a  recom- 
pence  for  Thomas  Whaley,  attorney  at  law,  clerk  to  the 
commissioners  of  contracts,  for  repairing  the  fortifica- 
tions, for  his  drawing  several  articles,  and  other  writing 
for  the  country  service,  and  also  for  satisfaction  of  some 
charges,  &e."  (no  objection)  ;  "an  act,  the  better  to  ena- 
ble committee  of  public  accounts  of  this  island  to  settle 
the  accounts  of  Richard  Downs,  late  treasurer  of  this 
island,  deceased  (no  objection) ;  "  an  act,  appointing 
agents  to  transact  and  negotiate  the  affairs  of  this  island 
in  Great  Britain"  (no  objection)  ;  "  an  act,  to  prevent 
His  Majesty's  subjects,  within  this  government,  from 
having  any  trade  or  commerce  with,  or  giving  any  pro- 
tection, encouragement,  or  assistance,  whatsoevsr,  to 
any  of  the  rebellious  subjects  of  his  most  Christian 
Majesty,  belonging  to  the  island  of  Martinique"  (no  ob- 
jection); "an  act  for  the  encouragement  of  David  Aubin, 
gentleman,  in  two  several  projections,  by  him  invented., 
(no  objection) ;  "  an  act  to  empower  the  treasurer  of 
this  island  to  defray  the  expense  of  the  late  great  ses- 
sions, held  on  the  second  Tuesday  in  December,  1717" 
(no  objection)  ;  "an  act  to  raise  a  levy  on  the  several 
inhabitants  of  this  island"  (no  objection)  ;  "an  act  for 
the  better  ordering  and  regulating  His  Majesty's  high 
and  honorable  court  of  exchequer,  and  pleas  of  the 


OPINIONS    <>!•'     EMINENT     LAWYERS. 

crown"  (no  objection)  ;  "an  act,  for  the  better  ordering 
and  regulating  His  Majesty's  courts  of  common  pleas 
within  this  island"  (no  objection);  "an  act,  appointing 
in  what  manner  salt  and  all  sorts  of  grain,  imported  in- 
to this  island,  shall  be  sold  or  disposed  of"  (no  objec- 
tion) ;  "  an  act  to  raise  a  levy  on  the  several  inhabitants 
of  this  island"  (no  objection);  "an  act,  for  encourage- 
ment of  Thomas  Sainthill,  gentleman,  in  his  projection 
of  a  mill  for  grinding  sugar-canes"  (no  objection)  ;  "an 
iict,  for  the  lurhter  and  better  enabling  the  committee, 
appointed  for  settling  the  public  accounts  of  this  island, 
to  proceed  to  the  balancing  accounts  of  the  honorable 
Thomas  Maycock  Esq.,  late  treasurer  of  the  said  island" 
(no  objection)  ;  "  an  act  to  empower  the  treasurer  of 
this  island  to  defray  the  expense  of  the  late  grand  ses- 
sions, held  for  the  body  of  this  island,  on  the  10th,  llth 
and  12th  days  of  June,  1718"  (no  objection);  "  an  act 
granting  a  free  liberty  to  the  inhabitants  of  this  island, 
in  general,  to  load  and  unload,  to  and  from  any  the 
bays,  creeks,  or  harbors,  in  and  about  this  island"  (no 
objection)  ;  "an  act  to  confirm  an  assessment  of  negroes' 
labor  and  carriage  of  carts,  laid  on  the  owners  of  said 
negroes  and  carts,  within  the  parish  of  Christ-Church, 
by  the  gentlemen  of  the  vestry  of  the  said  parish"  (no 
objection);  "an  act,  appointing  agents  to  transact  and 
aiegociate  the  affairs  of  this  island  in  Great  Britain,"  I 
have  no  objection  to  their  being  passed  into  law. 

But,  as  to  the  act,  entitled  "an  act,  requiring  all  per- 
sons to  bring  into  the  treasurer's  office,  a  list  of  all  or- 
ders due  to  them  from  the  public,"  I  must  beg  leave  to 
observe  to  your  Lordships,  that,  as  only  fifteen  days  are 
allowed  to  bring  into  the  treasurer's  office  all  orders 
which  any  inun  may  have  due  to  him  from  the  public, 


OF    THE    COLOMAL    CONSTITUTIONS.  367 

upon  pain  of  being  postponed  in  the  payment  of  his 
debt,  that  it  may  be  very  injurious  to  persons  dwelling 
out  of  the  island  ;  and;  therefore,  I  submit  it  to  your 
Lordships,  whether  it  would  not  have  been  reasonable 
to  have  allowed  unto  such  persons  a  longer  time  for  the 
producing  of  their  orders. 

Besides  the  above  mentioned  acts,  [among  which 
your  Lordships  will  observe,  that  there  are  several  pri- 
vate acts]  there  are  four  other  private  acts,  all  them  in- 
tended to  dock  the  entails  of  particular  estates,  of 
which  I  cannot  report  any  one  to  be  proper  to  be  passed 
into  law  :  the  first  of  which  is  an  act,  entitled  "an  act 
to  dock  the  entail  of  a  plantation  in  the  parish  of  St. 
James's,  and  the  negro  slaves  therunto  belonging,  and  to 
vest  the  fee  simple  thereof  in  William  Thorpe,  gentle- 
man, youngest  son  of  Robert  Thorpe,  deceased."  On 
which  act,  I  must  observe  to  your  Lordships,  that 
though  there  is  a  reservation  of  the  right  of  Thomas 
.Thorpe,  who,  in  case  he  should  return  into  the  island  of 
Barbadoes,  would  be  entitled  unto  the  estate  in  fee,  yet 
it  is  upon  this  condition,  that  he  should  live  in  the  is- 
land now,  though  this  is  in  pursuance  of  the  testator's 
will,  yet,  while  it  stood  upon  the  foot  of  the  will,  Thom- 
as Thorpe  might,  and  perhaps  with  success,  have  dispu- 
ted the  validity  of  that  condition,  but,  if  -it  be  annexed 
unto  his  estate  by  the  passing  of  this  act  into  law,  he  is 
then  bound  down  to  the  performance  of  that  codition 
without  remedy,  and  his  removal  out  of  the  island,  to 
reside  even  in  England,  might  be  construed  to  be  a  for- 
feiture of  his  estate  ;  I  submit  it  to  your  Lordships  to 
determine,  how  far  conditions  of  this  nature  are  to  be 
encouraged  or  not. 
.The  second  is  an  act.  entitled  "an  act  to  dock  the  en- 


368  OPINIONS    OF  EMINENT    LAWYERS. 

tail  on  certain  plantations,  in  the -parishes  of  St.  Thomas 
and  St.  James,  and  to  vest  the  same  in  Joseph  Gibbs  Esq. 
Upon  which  act,  I  must  observe  to  your  Lordships,  that 
the  estates  by  this  act  to  be  vested  in  Joseph  Gibbs  Esq. 
are  derived  from  the  wills  of  two  different  testators, 
who  created  the  entails  the  remainder  in  fee  to  Uieir  re- 
spective right  heirs,  and  }'et  there  is  no  recital  in  this 
act  [by  which  it  is  proposed  to  dock  the  said  several  en- 
tails,] of  the  several  consents  of  the  next  heirs  of  either 
of  the  said  testators,  which  I  conceive  to  be  not  only  re- 
quisite, in  consequence  of  the  Governor's  instructions, 
but  even  of  natural  justice  and  equity. 

The  third  is  an  act,  entitled  "an  act  to  dock  the  entail 

on  two  messuages  and  three  pieces  of  land  in  the  town 
of  Saint  Michael,  and  on  certain  negro  slaves,  and  to  vest 
the  fee  simple  thereof  in  Martha  Lenoir,  wife  of  John 
Lenoir  Esq.,  and  daughter  and  heir  of  William  Craggs 
Esq.,  late  of  the  town  of  St.  Michael,  merchant,  deceas- 
ed. The  end  of.  this  act  is  to  dock  the  entail  of  an  es- 
tate which  is  supposed  to  be  vested  in  Martha  Lenoir,  by 
virtue  of  its  having  been  granted  to  her  and  her  heirs 
lawfully  begotten.  My  objection  to  this  act  is  that  it  is 
impertinent,  for  without  the  assistance  of  this  act  she 
hath  an  estate  in  fee  simple  already. 

The  fourth  is  an  act  entitled,  "an  act  to  dock  the  en- 
tail limited  on  certain  lands,  &c."  in  the  parish  of  Saint 
Philip,  and  to  invest  the  fee  thereof  in  John  Jones,  gen- 
tleman. My  objection  to  this  act  is,  that  though  there 
is  in  it  a  reservation  of  the  right  of  the  Crown,  yet  it  is 
not  proper  to  be  confirmed .  upon,  the  account,  that  a 
clause  is  wanting  to  save  the  rights  of  all  bodies 


OF  THE  COLONIAL    CONSTITUTIONS.  369 

politic,  and  all  other  persons  whatsoever,  not  mentioned 
in  the  act. 

RICH.  WEST. 
August  3,  1719. 

(8.)  Mr,  Fantfs  objections  to  an  act  of  the  same  act, 
as  unfit. 

To  the  Right  Honorable,  the  Lords   Commissioners  for 

Trade  and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter,  referring  to  me  an  act 
passed  in  Barbadoes,  in  1722-3,  entitled  "an  act  for  sup- 
porting the  honor  and  dignity  of  the  government ;"  and 
also  a  copy  of  a  petition  from  Mr.  Worsley,  late  Gover- 
nor of  Barbadoes,  praying  His  Majesty's  directions  for 
the  recovery  of  the  arrears  due  upon  the  said  act,  and 
desiring  my  opinion,  whether  any,  and  what  method,  by 
law,  can  be  taken  for  recovering  the  same,  I  have  con- 
sidered of  the  said  act  and  petition,  and  humbly  observe 
to  your  Lordships,  that  I  apprehend  the  following  ques- 
tions may  arise  upon  the  construction  of  this  act,  as  to 
the  method  of  proceeding  for  the  recovery  of  the  ar- 
rears, and  which  I  beg  leave  to  state  to  your  Lordships 
with  my  opinion  thereon. 

By  the  act,  certain  duties  were  laid  on  negroes,  &c. 
and  granted  to  His  Majesty,  his  heirs  and  successors,  for 
the  uses  therein  specified,  the  first  whereof  was  for  the 
payment  of  the  Governor's  salary,  which  was  settled  on 

him  during  the  whole  time  of  his  government,  and  di- 

48 


370  OPINIONS  OF  EMINENT  LAWYERS. 

rections  are  therein  given  for  the  collecting  and  levying 
the  said  duties. 

By  the  tenth  clause  in  the  act,  if  any  person  charged 
or  chargeable,  by  virtue  of  the  act,  neglect  to  give  in 
the  number  of  his  negroes,  &c.  or  who  having  given  in 
the  number  of  his  negroes,  &c.  neglect  to  pay  at  the  time 
prescribed,  he  shall  forfeit  double,  A  question  seems 
to  arise  upon  this  clause,  whether,  although  the  repre- 
sentatives should  not  return  a  list  of  defaulters,  accord- 
ing to  the  directions  of  the  eighth  clause,  whether  the 
treasurer  may  issue  executions  upon  the  defaulters,  or 
in  what  other  method  he  may  proceed  1 

The  act  of  assembly  is  not  so  clearly  penned  upon  this 
point  as  it  ought  to  be,  but,  upon  considering  the  seve- 
ral clauses,  I  think  if  the  persons  chargeable  neglect  to 
give  in  their  number  of  negroes,  or  neglect  to  pay, 
having  given  in  as  is  directed,  notwithstanding  the  rep- 
resentatives should  not  return  a  list  of  the  defaulters,  ac- 
cording to  the  eighth  clause,  they  will  forfeit  double  ; 
and  the  treasurer  may  levy  the  forfeiture  according  to 
the  directions  of  the  twelfth  clause,  and  in  order  to 
proceed  thereto,  he  is  to  receive  any  legal  evidence  that 
shall  be  given,  but  he  cannot  examine  the  party  him- 
self because  it  may  tend  to  subject  him  to  a  penalty  : 
this  method  of  proceeding  may  perhaps  be  the  most  ex- 
peditious, but  the  most  certain  will  be,  by  filing  an  En- 
glish bill  in  the  proper  court  in  the  attorney -general's 
name,  on  His  Majesty's  behalf,  for  the  recovery  of  the 
single  duty,  waiving  the  penalty. 

By  the  fourth  aud  sixth  clauses  in  the  act,  lawyers 
and  patent  officers  are  charged  with  a  sum  certain,  re- 
spectively, but  the  non-payment  of  it  is  omitted  to  be 
made  a  forfeiture.  A  question  may,  therefore,  arise, 


OP  THE  COLONIAL  CONSTITUTIONS.         371 

whether  the  treasurer  may  issue  executions  for  the  sin- 
gle duty  ?  I  think  there  is  no  authority  given  for  the 
treasurer  to  proceed  in  the  summary  way  he  is  empow- 
ered to  do  upon  a  penalty,  and,  therefore,  the  proper 
way  of  proceeding  in  this  case,  will  be  by  English  bill, 
in  the  attornej'-generaFs  name,  on  His  Majesty's  be- 
half. 

The  committee  for  settling  the  public  accounts,  and 
who,  by  the  fourteenth  clause  of  this  act,  are  vested  with 
power  to  proceed  against  the  treasurer  for  any  neglect, 
the  same  manner  as  he  ought  to  have  done  against  the 
owners  themselves,  are  by  a  former  law  made  up  of  four 
members  of  the  council  and  six  of  the  assembly.  Now 
it  happens  that  all  these  last  are  defaulters  themselves, 
and  have  incurred  penalties  for  not  pursuing  the  act, 
and,  therefore,  it  is  apprehended  they  will  either  avoid 
making  a  committee  to  settle  the  treasurer's  accounts, 
in  order  to  screen  him  or  themselves  (who,  it  is  said, 
have  given  him  security  to  indemnify  him,)  or  else  if 
they  do  meet,  they  will  adjust  his  accounts  without 
proceeding  against  him  for  his  neglect,  by  which  means 
there  will  be,  as  there  has  been  already  for  two  years 
past,  a  great  deficiency  in  the  collection,  and  conse- 
quently, great  arrears  due  to  His  Majesty.  A  question 
may  arise  upon  this  :  if  it  appears  that  the  treasurer  has 
neglected  his  duty,  whereby  a  deficiency  in  the  collec- 
tion has  been  occasioned,  what  method  will  be  proper 
to  be  taken  against  the  treasurer,  for  what  is  due  to  the 
Governor,  although  the  committee  of  public  accounts 
should  do  as  above-mentioned  1  I  think  by  the  four- 
teenth clause,  the  party  charged  with  the  duty,  who  was 
the  original  debtor,  is  expressly  discharged,  and  the 
treasurer,  by  reason  of  his  neglect,  is  put  in  his  place, 


372  OPINIONS  OF  EMINENT  LAWYERS. 

and,  therefore,  in  cases  where  the  treasurer  might  clear- 
ly by  law  ha^e  levied  the  penalties,  and  has  wilfully 
neglected  to  do  it,  he  will  be  liable  to  answer  the  sin- 
gle duty,  and  a  bill  may  be  brought  against  him,  in 
the  attorney-general's  name,  for  the  recovery  thereof. 

The  treasurer,  who  is  chosen  annually,  is  obliged  by 
the  annual  excise  act,  to  enter  into  a  recognizance  to 
His  Majesty's  Governor,  with  such  good  and  sufficient 
securities  as  the  said  Governor  and  council  shall  approve 
of,  in  the  sum  of  £10,000  for  the  faithful  discharge  of 
the  said  office.  A  question  may  arise  upon  this,  if  the 
treasurer  has  in  any  instance  neglected  the  duty  re- 
quired of  him,  by  the  act  now  in  consideration,  whether 
the  recognizance  for  the  faithful  discharge  of  his  office 
can  be  put  in  suit  by  a  sc  ire  facias,  unless  such  neglect 
should  appear  by  the  procedings  of  the  committee,  and 
in  what  manner  ;  if  judgment  should  be  obtained  upon 
this  recognizance,  will  the  money  levied  thereon  be  ap- 
plied ?  I  think  it  is  not  necessary  that  the  accounts 
should  be  first  adjusted  by  the  committee,  or  that  they 
should  determine  the  neglect  before  the  treasurer's  re- 
cognizance is  put  in  suit.  I  think  the  wilful  neglect  of 
the  duty  required  of  him  by  the  act  will  be  such  a 
breach  of  the  condition  as  may  be  assigned  upon  a  sr.ire 
facias,  because,  I  observe,  the  recognizance  was  entered 
into  after  the  passing  of  the  act,  whereby  the  several 
matters  mentioned  in  the  act  are  made  part  of  his 
duty. 

I  have  now  stated  to  your  Lordships  the  several 
questions  that  I  apprehend  may  arise  upon  the  consid- 
eration of  this  act,  as  to  the  method  of  recovering  the 
several  duties  granted,  and  have  given  your  Lordships 
my  thoughts  upon  them.  I  beg  leave  to  say,  that* upon 


OF  THE  COLONIAL  CONSTITUTIONS.  373 

the  whole,  I  think  there  is  a  very  plain  remedy  for  the 
recovery  of  these  arrears. 

*J 

FRAN.  FANE. 
May  11,  1732. 

(9.)  The  opinion  of  the  Attorney-General  RawUn, 
of  :Btirbadod$,  on  tlie  qct  of  Assembly  ci  cuting  paper 
money. 

May  it  please  your  Excellency  ; 

I  presume,  with  your  Excellency's  permission,  and 
under  your  pardon,  since  I  am  disabled  from  waiting 
on  you,  to  give  your  Excellency  my  thoughts  on  the 
act  relating  to  the  payment  of  the  bank  bills,  the  occa- 
sion of  which  was  on  the  act  for  establishing  a  method 
of  credit,  &c.  which  said  act  of  credit  Her  Majesty  hath 
been  graciously  pleased  to  repeal,  finding  it  against  her 
prerogative,  and  for  the  disadvantage  of  her  subjects  and 
trade. 

This  act  being  repealed,  I  take  the  whole  act  to  be  as 
if  no  such  act  had  been  made,  as  to  any  thing  in  force 
now,  and,  by  the  repeal,  the  whole  is  gone,  and  cannot 
stand  in  part  good  and  as  to  the  other  part,  void,  the 
act  being  an  entire  act  must  take  its  fate  together. 

This  act  being  repealed  and  in  this  state,  it  is  to  be 
considered,  what  power,  or  rather,  whether  the  legisla- 
tive authority  had  any  power,  after  this  repeal,  to 
make  any  other  law  relating  to  it,  and  I  presume  they 
had  not  any  sufficient  authority  to  that  purpose  in 
themselves,  which  Her  Majesty,  in  her  great  wisdom 
foreseeing,  by  her  instructions  appointed  what  was  her 
will  and  pleasure  to  be  done  in  this  case,  and  therefore 
appointed  that  by  some  new  law,  those  people,  who 


374  OPINIONS  OF  EMINENT  LAWYERS. 

were  obliged  to  part  with  their  legal  securities,  be  no 
sufferers  thereby,  but  be  restored  as  far  as  may  be  to  the 
same  state  they  were  in  before  the  passing  the  said  act. 
So  that  it  seems  clear  and  plain  the  asssmbly  had  no 
other  authority  to  enact  a  new  law  but  from  Her  Majes- 
ty's instructions  ;  and,  therefore,  I  conceive  they  had 
no  other  foundation  to  enact  this  new  law  but  from  Her 

• 

Majesty's  said  instructions,  and  which  they  have  them- 
selves made  the  chief  ground  of  the  said  act,  and  by  the 
said  instructions  were  limited  and  tied  up,  and  the  legis- 
lative power  only  qualified  to  make  a  new  law  to  those 
particular  ends  and  purposes  appointed  by  Her  Majesty's 
instructions  and  no  other,  and  whatever  they  do  beyond 
or  different  from  such  authority,  is  void. 

Wherefore,  it  is  fit  to  be  inquired  into  and  considered 
what  the  said  instructions  appoint  and  empower,  and  I 
take  Her  Majesty's  words  to  be  certain  and  plain,  only 
to  restore  or  re-instate  those  persons  who  had  parted 
with  their  legal  securities  into  the  same  state  and  con- 
dition they  were  in  before,  and  no  otherwise  ;  but,  on 
the  contrary,  they  had  exceeded  the  said  instructions 
and  power,  and  enacted  many  strange  and  illegal  things, 
both  different  from,  and  repugnant  to,  the  said  instruc- 
tioas,  for  I  cannot  find  that  by  any  part  of  Her  Majesty's 
instructions  these  law-makers  were  any  ways  empower- 
ed to  any  of  the  several  things  following,  all  which  are 
enacted  by  the  said  act. 

That  they  had  any  power  to  alter  the  nature  of  any 
debt,  and  to  give  bonds  the  force  of  judgments,  without 
any  legal  proceeding  thereto. 

That  act  cannot  declare  the  said  bonds  to  be  judg- 
ments, and  so  to  appoint  that  execution  ^hall  issue,  and 
be  levied  on  any  estate,  real  or  personal,  of  the  debtor, 


OP  THE  COLONIAL  CONSTITUTIONS.  375 

and  in  default  thereof,  on  his  person,  without  being  ille- 
gal and  contrary  to  law. 

For  that  the  great  statute  of  Magna  Charta,  which  is 
so  dear  to  all  English  subjects,  and  hath  been  two  and 
thirty  times  confirmed,  positively  declares  that  no  man 
shall  be  disseized  of  his  freehold  but  by  due  process  of 
law. 

And  how  this  act,  contrary  to  this  and  many  other 
statutes  of  the  kingdom  of  England,  can  enable  the  dis- 
seizing any  person  of  his  freehold  by  a  bare  warrant, 
without  trial,  whether  the  debt  is  due  or  not,  or 
whether,  if  due,  it  is  satisfied  or  not,  seems  very  strange 
and  contrary  to  common  right  and  reason  as  well  as  law; 
further,  I  take  it,  that  the  then  Governor's  commission 
could  not  empower  the  passing  any  such  act,  for,  that 
the  words  of  the  said  commission  are  that  no  laws  shall 
be  passed  that  are  repugnant  to  the  laws  of  England, 
but  all  such  laws  as  shall  be  passed  here  shall  be,  as 
near  as  may  be,  agreeable  to  them,  and  this  act,  being 
almost  in  every  branch  repugnant,  nay,  and  further  to 
take  away  all  the  power  and  force  of  Magna  Charta,  is 
contrary  to  the  said  commission  as  well  as  law,  and 
therefore  void,  for  it  is  a  maxim,  that  an  act  of  parlia- 
ment that  is  against  common  right  or  reason,  or  is  re- 
pugnant or  impossible  in  itself,  is  void. 

That  all  limited  authorities  must  be  strictly  pursued, 
otherwise,  whatever  is  done  under  the  pretence  of  such 
authority,  is  not  warrantable  thereby,  and  having  no 
foundation  to  support  and  maintain  it,  must  by  conse- 
quence cease  and  become  insignificant  with  all  things 
acted  thereby,  and  as  I  take  it  the  assembly  had  but  a 
limited  authority,  which  they  in  most  parts  of  the  act 
exceed,  and  in  very  few  truly  pursued  the  power  and 


376  OPINIONS    OF    EMINENT    LAWYERS. 

authority  given  to  the  gentlemen  therein  mentioned,  by 
the  very  act  itself,  is  but  as  commissioners,  without  in- 
vesting them,  in  the  least,  with  the  qualification  of  a 
court  of  justice,  and  a  commission  granted  against  law 
or  the  empowering  particular  persons  to  do  things  a- 
gainst  law,  is  void,  and  so  it  wonld  be,  if  they  had  en- 
acted it  themselves,  and  the  express  words  of  the  law 
are,  that  no  commissions  may  be  given  or  granted,  to  do 
any  thing  against  the  law  of  God  or  the  nation,  as  to 
take  or  imprison  men's  bodies,  enter  upon  their  lands, 
or  take  their  goods,  without  due  order  of  law,  and,  if 
any  such  be  granted,  the  law  declares  such  commissions 
void. 

It  is  to 'be  allowed,  that  the  legislative  authority  of 
this  island  hath  sufficient  power  to  do  many  and  noble 
things,  for  the  well  being  thereof  and  for  the  ease  and 
safety  of  the  people,  and  the  more  they  keep  themselves 
within  the  limits  of  the  Governor's  commission  and  Her 
Majesty's  instructions,  the  firmer  will  their  acts  be, 
and  of  much  greater  force,  when  supported  by  law  and 
regal  power. 

But,  on  the  other  hand,  it  cannot  be  granted  them, 
that  they  are  capable  to  enact  at  their  own  will  and 
pleasure  what  they  think  fit.  For  they  cannot,  by  a 
law,  alter  the  common  law  of  England,  and  and  the  set- 
tled course  of  proceedings  thereon  ;  they  cannot  change 
the  common  securities  of  the  kingdom.  They  cannot 
enact  any  thing  against  Her  Majesty's  prerogative. — 
They  cannot  take  away,  by  any  act  they  can  establish, 
any  authority  vested  in  the  Governor  by  Her  Majesty's 
commission,  with  many  other  things,  too  many  here  to 
be  enumerated,  and  they  cannot  pretend  to  have  an 
equal  power  with  the  parliament  of  England. 


OF  THE  COLONIAL  CONSTITUTIONS.  377 

So  I  observe,  that  many  branches  of  this  act  are,  that 
in  case  the  debtor  fail  to  perform  many  requisites  ap- 
pointed by  the  said  act,  though  without  any  legal  trial, 
or  hearing,  or  judgment,  whether  he  hath  really  offend- 
ed against  the  commands  of  the  said  act,  shall,  ipsofac- 
£9,  be  committed  to  the  common  gaol  and  there  to  re- 
main without  bail  or  mainprize,  he  and  his  cause  being 
unheard  and  debarred  of  any  benefit  of  law  or  equity, 
and  when  and  how  to  be  delivered,  though  never  so 
much  justice  on  the  prisoner's  side,  is  not  appointed  or 
permitted,  and,  if  this  can  be  called  justice,  it  is  sum- 
mum  jus,  which  is,  summa  inqidria  et  misera  est  gens 
iibi  jus  e$t  vagum. 

Indefinite  imprisonment  is  against  the  'law  of  the 
land,  and  I.  take  it  to  be  expressly  against  Her  Majes- 
ty's instructions,  for  any  persons  to  be  committed  with- 
out bail  or  mainprize  for  any  crime  under  felony  or 
treason,  for  Her  Majesty  hath  been  graciously  pleased 
to  command  her  judges  to  take  bail  for  any  person,  com- 
mitted for  any  crime  except  felony  or  treason,  and  that 
too  must  be  plainly  and  clearly  expressed  in  the  war- 
rant of  milimus,  and,  therefore,  I  cannot  but  be  of  opin- 
ion, that  all  those  branches  of  the  said  act,  ordering  such 
illegal  commitments,  are  against  law  and  the  Queen's 
instructions,  and  therefore  become  void. 

There  is  a  settled  maxim  in  the  law  that  no  person 
shall  be  obliged  to  accuse  himself,  yet,  by  the  said  act, 
persons  are  obliged  to  swear  whether  they  have  had  lar- 
ger credit  than  warranted  by  the  late  repealed  law,  and 
thereby  bring  themselves  within  the  penalty  thereof, 
though  the  person  may  not  know  the  real  title  or  value 
of  his  estate,  yet  the  commissioners  have  absolute  power 

without  any  legal  trial,  to  commit  such  to  gaol,  &c. 
49 


378  OPINIONS  OF  EMINENT  LAWYERS. 

The  statute  of  Magna  Charta  is  express,  that  no  person 
shall  be  restrained  of  his  liberty,  or  disseised  of  his 
lands  or  tenements,  but  by  due  trial  according  to  the 
-law  of  the  land,  tbe  benefit  of  which  statute  is  wholly 
taken  away  by  this  act,  aud  the  subject  debarred  of  his 
liberty  without  trial  or  any  other  due  course  of  law. 

Also,  in  most  of  the  branches  of  the  said  act,  it  is  en- 
acted that  if  compliance  in  payments  &c.  is  not  exactly 
as  the  act  directs,  then  the  commissioners  are  empow- 
ered to  issue  out  executions  and  thereby  levy  not  only 
on  the  debtor's  real  estate,  but  also  on  his  personal  es- 
tate he  shall  then  be  possessed  of,  and  this  without  legal 
trial,  whether  the  said  estate  is  liable  to  such  execu- 
tion, or  whether  the  party  hath  right  or  title  to  the 
same  or  not,  for  many  persons  may  be  possessed  by 
several  lawful  ways,  as  by  late  managemert,  executor- 
ships,  as  attorneys,  &c.  who  have  no  legal  right  to  such 
personal  estate,  by  whieh  means,  by  the  borrower's  act, 
the  right  owner  may  be  stripped  of  his  estate  without 
trial,  and,  by  the  said  act,  is  afterwards  debarred  of  any 
remedy  either  in  law  or  equity,  for,  by  the  words  of  the 
act,  a  bare  possession  entitles  to  an  execution  ;  and,  if 
the  officer  find  not  sufficient  to  satisfy  what  is  required, 
then  the  person  may  be  committed  to  gaol,  without  be- 
ing tried  whether  he  hath  offended  against  the  said  act 
or  not,  or  being  admitted  to  the  liberty  of  relief  in  equi- 
ty, writ  of  error,  or  appeal  to  the  Governor  or  Her  Maj- 
esty herself,  which  (with  submission)  I  cannot  conceive 
to  be  consonant  to  Her  Majesty's  order  or  her  gracious 
intentions  therein. 

By  this  act,  all  entailed  estates  are  liable  to  execu- 
tion, and  thereby  all  remainders  and  reversions  may  be 
defeated,  which  is  tacitly  the  docking  all  such  estates 


OF  THE  COLONIAL  CONSTITUTIONS.         379 

against  the  law  of  England,  and  infants  and  strangers 
that  have  no  privity  or  knowledge,  persons  beyond  the 
seas  that  may  have  interest  and  right  in  those  estates, 
may  have  their  estates  torn  to  pieces  and  they  stripped 
from  their  possessions  without  trial  or  any  process  of 
law,  by  a  pretended  execution,  without  any  record  or 
judgment  to  support  it,  and  this  without  any  relief  or 
remedy  after  by  any  process  of  law,  or  appeal,  what- 
soever. 

The  authority  given  to  the  said  commissioners,  being 
to  them,  or  to  either  of  them,  I  conceive  to  be  uncertain 
and  inconsistent,  for,  that  each  person  having  the  same 
fullness  of  power,  two  executions  may  issue  at  one  and 
the  same  time,  for  the  same  cause,  which  is  against  jus- 
tice ;  but  I  cannot  conceive  that  the  power  of  issuing  out 
executions  can  be  lodged  in  two  persons  at  one  and  the 
same  time,  and  I  presume  no  such  precedent  ca'n  be  pro- 
duced, for  it  was  never  known  that  the  power  of  issuing 
out  execution  was  placed  in  any  other  hands  than  the 
chief  judge  of  a  court. 

The  great  and  principle  clause  in  the  second  folio  of 
this  act,  which  makes  all  the  estates  liable  to  answer  the 
bonds  entered  into,  depends  entirely  on  the  repealed  act, 
and  is  so  expressed,  which  act,  from  the  time  of  Her 
Majesty's  repeal,  became  void  in  law,  as  if  no  such  act 
had  ever  been  made,  and  if  this  stands,  there  is  the 
same  reason  for  all  the  rest  of  the  said  act,  and  this 
would  be  to  oppose  Her  Majesty's  authority,  and 
make  that  act  of  force  and  valid  which  Her  Majesty  hath 
positively  repealed,  and  thereby  deny  her  authority, 
the  danger  of  which  ought  to  be  highly  regarded. 

By  the  great  general  clause  in  folio  3,  it  is  enacted, 
that  the  commissioners,  or  either  of  them,  are,  on  non- 


380  OPINIONS  OF  EMINENT  LAWYERS. 

payment,  immediately  required  to  issue  out  a  warrant 
or  execution,  under  his  or  their  hand  and  seal,  to  be 
directed  unto  such  marshal  or  officer  as  the  said  com- 
missioners (note  the  power  is  here  jointly  in  both  the 
commissioners,  though  separately-  before,)  may  choose 
to  attach  all,  or  any,  the  estate  of  inheritance,  or  other 
estate  real,  whereof  such  person  or  persons,  are,  or  were 
actually  seized  at  the  time  of  entering  into  the  said  ob- 
ligations, in  whose  hands  soever  the  estate  shall  be 
found. 

On  which  clause  I  observe,  that  no  other  estate  is 
made  liable  to  such  attachment  but  such  estate  only  as 
the  debtor  was  seized  of  at  the  time  of  entering  into  the 
allegation,  and  how  that  can  be  determined  without  a 
legal  proceeding  and  trial  will  be  difficult  to  be  justly 
determined. 

By  the  clause,  empowering  marshals  to  give  bills  of 
sale,  it  is  thereby  declared  that  such  bill  of  sale  given 
by  the  said  officer  or  marshal  and  duly  executed,  shall 
be  valid  to  all  intents  and  purposes  whatsoever,  to  con- 
vey any  the  lands,  buildings,  or  negroes,  to  the  purchas- 
er, which,  I  conceive  cannot  be  anywise  valid  accord- 
ing to  law,  there  being  no  record  or  legal  proceedings 
to  maintain  or, warrant  any  such  sale  or  deed  to  the  pur- 
chaser to  make  him  a  legal  title  when  it  shall  come 
hereafter  to  be  tried  in  a  court  of  justice  according  to 
due  form  of  law. 

My  Lord  Coke,  in  folio  587  and  588,  saith,  that  if  an 
act  is  impossible  and  inconvenient  to  be  observed,  it  is 
void,  as  in  the  case,  there  put,  of  the  common  seal  be- 
ing put  into  the  custody  of  the  prior  and  four  of  the 
worthiest  and  discreetest  of  the  convent,  which  was  ob- 
served to  be  impossible  and  inconvenient  and  therefore 


OF  THE  COLONIAL  CONSTITUTIONS.         381 

resolved  by  the  whole  cuort  of  common  pleas  to  be  ; 
and  Bracton  giveth  us  a  rule,  that  lex  est  sanctio  justa 
jubens  lionesta  et  proMbens  contraria,  so  as  every  law 
must  have  three  qualities  :  first,  it  must  be  justa  :  sec- 
ondly, jnbcns  koncsta /third,  by  prohibens  contraria ;  and 
if  it  must  be  justa,  it  must  have  five  properties  :  first, 
it  must  be  possibilis  /  secondly,  neces-mria  ;  thirdly, 
conveniens  /  fourthly,  manifesto,  /  fifthly,  nulloprivato 
comodO)  scd  eomuni  iitilitati  edita,  and  this  grounded 
upon  holy  writ,  legurti  condite  res  justa  decernant)  v&  qui 
condunt  leges  iniquas  et  seribentes  in  jastiiiam  scripser- 
ant  /  and  how  many  of  these  requisites  are  contained  in 
the  present  act  in  dispute,  I  leave  to  any  considerate 
judge  to  detennine,  and  I  take  it,  that  this  act  falls  un- 
der the  said  rules  of  being  impossible  and  inconvenient, 
for  the  enacting  persons  to  be  disseised  of  their  estates 
and  their  bodies  to  be  imprisoned  contrary  to  common 
law  of  the  land  is  legally  impossible  to  be  done,  and 
it  cannot  be  denied  but  that  it  is  very  inconvenient, 
against  common  justice  to  be  stripped  of  our  freedom, 
rights  and  properties,  without  any  judicial  hearing  ;  and 
what  is  the  highest  injustice  and  the  greatest  of  hard- 
ships, that  how  unjust,  irregular  and  severe,  any  pro- 
ceedings are,  or  may  be,  the  party  grieved  is  debarred 
of  any  remedy,  either  by  writ  of  error,  injunction  of 
chancery,  appeal  to  the  government,  or  to  Her  Majesty 
herself,  though  the  party  lies  under  the  greatest  griev- 
ances whatsoever. 

These  things  1  take  to  be  legally  impossible  and  what 
no  act  of  this  island  can  lawfully  establish. 

Lastly,  if  the  act  itself  was  passed  by  a  lawful  au- 
thority, whether  it  is  not  of  so  extraordinary  a  nature 
and  so  variant  from  Her  Majesty's  instructions,  and  con- 


382  OPINIONS  OP  EMINENT  LAWYERS. 

tains  so  many  insufficiences,  and  is  so  repugnant,  in 
most  of  its  material  parts,  of  the  laws  of  the  land,  the 
rights  of  the  kingdom,  the  liberty  of  the  subject,  your 
Excellency's  power  and  authority,  and  Her  Majesty's 
prerogative,  that  it  ought  not  to  be  put  into  effect  and 
have  any  force  till  Her  Majesty's  pleasure  and  approba- 
tion or  disapprobation  shall  be  made  known. 

If  these,  my  present  thoughts  on  this,  may  be  any 
way  satisfactory  to  your  Excellency  and  serviceable  to 
the  island  and  Jler  Majesty's  interest,  I  shall  think  my- 
self happy  to  have  acquitted  myself  of  the  duty  incum- 
bent on  me,  and  pray  your  Excellency  would  be  pleased 
to  accept  of  it,  as  my  sincere  opinion,  according  to  the 
best  of  my  judgment. 

WILL.  RAWLIN. 

(10.)  1  lie  objections  of  the  Attorney-General  Norihey, 
t<)  tlie  same  act  creating  paper  money- 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

Tn  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  perused  and  considered  of 
an  act,  entitled  an  additional  act  to  the  act  entitled  an 
act  to  ascertain  the  payment  of  such  bills  as  have  been 
issued,  pursuant  to  a  late  act  of  this  island,  entitled  an 
act  to  supply  the  want  of  cash,  and  to  establish  a  meth- 
od of  credit  for  persons  having  real  estates  in  this  is- 
land, and  passed  in  Barbadoes,  the  12th  of  July  1716, 
as  also  the  said  original  act  ;  and  do  humbly  certify 
your  Lordships,  that  the  said  additional  act  is  to  con- 
stitute a  new  commissioner  and  new  marshal  ( those 


OP  THE  COLONIAL  CONSTITUTIONS.         383 

mentioned  in  the  first  act  being  dead  or  removed,)  to 
execute  the  powers  in  the  original ;  and  this  additional 
act  is  part  executed,  or  not  executed,  and  provides  sev- 
eral remedies,  where  monies  bid  on  sales  at  outcries, 
pursuant  to  the  first  act,  have  not  been  paid  ;  and  lays 
several  penalties  on  such  bidders  not  paying  what  they 
shall  have  bid  ;  and  empowers  a  person  to  bid  in  behalf 
of  the  government,  where  no  person  appears  to  bid,  by 
which  I  apprehend  is  meant  a  real  bidder  ;  for  in  the 
oath  of  the  persons  empowered  to  bid,  he  swears  he 
will  not  bid,  but  where  no  other  person  will  bid,  or  un- 
less a  person  shall  endeavor  to  purchase  the  laws  at  an 
under  rate,  and  swears  he  will  not  exceed  in  such  bid- 
ding, two-thirds  of  what  he  shall,  in  his  conscience,  es- 
teem the  land  worth  ;  which  seems  to  be  a  penalty  on 
the  owner  for  keeping  away  bidders,  otherwise  I  do  not 
see  why  the  bidder  should  not  give  the  value  of  the  es- 
tate. 

And  the  said  additional  act  gives  several  powers  for 

the  better  executing  the  design  of-  the  former  act,  which 
was  to  discharge  the  debts  and  engagements  contracted 
by  reason  of  an  act,  entitled  an  act  to  supply  the  want 
of  cash  by  a  method  of  credit,  for  persons  having  real 
estate  in  this  island,  (  called  the  paper  act)  which 
was  repealed  by  her  late  Majesty  ;  and  I  have  no  ob- 
jection, in  point  of  law,  against  the  said  additional  act. 
There  is  therein  a  pretty  extraordniary  punishment  on 
persons  bidding  for  lands  which  they  were  then  incapa- 
ble of  paying  for,  viz  :  imprisonment  for  a  year,  to  be 
set  in  the  pillory,  and  to  have  their  ears  cut  off;  but 
that  being  only  for  persons  who  knew  their  own  inabili- 
ties, I  have  no  objection  thereto. 

EDW.  NORTHEY. 
December  23,  1717. 


384  OPINIONS  OF  EMINENT  LAWYERS. 

(11.)    The  objection  of  the  same  lawyer  to  act  of  Bar- 
badoes, as  unreasonable. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  I  have  considered  the 
following  acts  passed  at  an  assembly  of  Barbadoes,  in 
March  1701-2  and  April  1702,  viz  :  "  an  act  for  the  fur- 
ther supply  of  fire-arms  and  other  stores,  &c.,  dated  the 
19th  of  March,  1701-2  ;"  "  an  act  to  secure  the  peacea- 
ble possession  of  negroes  and  other  slaves  to  the  inhabi- 
tants of  this  island,  and  to  prevent  and  punish  the  clan- 
destine and  illegal  detinue  of  them,  dated  the  27th  of 
April,  1702  ;"  which  laws,  I  conceive,  are  agreeable  to 
law,  and  do  not  contain  any  thing  prejudicial  to  Her 
Majesty's  prerogative,  except  the  act  to  secure  the 
peaceable  possession  of  negroes,  &c.,  as  to  which  I  am 
of  opinion,  that  though  many  parts  of  this  law  (which  is 
not  temporary  but  perpetual)  may  be  of  use  to  the  plan- 
ters in  Barbadoes  ;  yet  that  part  of  it  which  prohibits, 
the  carrying  away  white  servants  without  consent  of 
the  owners,  under  the  penalty  of  one  hundred  pounds, 
and  obliges  masters  of  ships  to  swear  not  to  carry  them 
away,  is  not  fit  to  be  approved  of;  for  that  children  sto- 
len from  England  and  carried  to  the  Barbadoes  cannot 
be  reclaimed  and  carried  away  at  the  instance  of  their 
parents  ;  and  as  it  is  worded  (if  otherwise  fit)  it  is  un- 
reasonable, being,  if  any  person  shall  directly  or  indi- 
rectly carry  off,  attempt,  or  cause  to  be  carried  off,  any 
white  servant  without  knowledge  of  the  owner,  which 
a  man  may  innocently  do,  the  words  (knowing  such 


OF  THE  COLONIAL    CONSTITUTIONS.  385 

person  to  be  a  servant)  being  omitted  ;  and  therefore  I 
think  this  law,  with  these  clauses  in  it,  not  fit  to  be 
approved. 

EDW.  NORTHEY. 
Oct,  22,  1703. 

(12.)  The  report  of  Mr,  West,  in  favor  of  a  Jamaica 
act  upon  general  principles  of  colonial  policy. 

To  the  Right  Honorable  the  Lords   Commissioners   of 

Trade  and  Plantations, 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  on  the  27th  of  June  1723,  I  have 
reconsidered  an  act  passed  in  the  island  of  Jamaica,  en- 
titled an  act  for  encouraging  the  speedy  settling  of  the 
plantation,  commonly  called  Pero  or  Pera  plantation, 
situate  at  Port  Morant,  in  the  parish  of  St.  Thomas  in 
the  East,  in  this  island  ;  and  for  obliging  all  persons  en- 
titled to  the  equity  of  redemption  thereof  to  redeem 
the  same  by  a  prefixed  time. 

In  the  consideration  of  acts  passed  in  the  American 
colonies,  when  the  Governor,  council  and  assembly  of 
any  province  take  it  upon  them,  in  the  preamble  of  an 
act,  to  recite  and  aver  a  matter  of  fact  transacted  with- 
in their  own  bounds,  and  to  which  no  objection  or  op- 
position is  made,  I  apprehend  that  I  ought  to  take  those 
facts  for  granted,  and  upon  that  foot  only  to  consider 
whether  an  act,  referred  to  me,  is  reasonable  to  be  pass- 
ed into  law  or  not. 

And  if  this  act  be  considered  in  that  light,  it  seems  to 
me  to  be  much  stronger  than  the  common  foreclosure  of 
an  equity  of  redemption  upon  a  mortgage  ;  for  the  act 

50 


386  OPINIONS    OF     EMINENT     LAWYERS. 

recites,  that  it  appears  upon  record  in  the  island  that 
the  estate  in  question  did  originally  belong  to  one  Sir 
Thomas  Lynch,  and  that  he,  so  long  ago  as  the  year 
1682,  agreed  for  the  sale  of  this  estate  to  one  Joshua 
Smith,  for  the  sum  of  £6000  ;  it  also  appears  upon  rec- 
ord that  Smith  never  paid  the  purchase  money  but  in- 
stead thereof,  upon  the  23d  of  November,  16827  recon- 
veyed  back  to  Sir  .Thomas  Lynch  his  own  estate,  as  a 
security  for  the  said  sum  of  £6000,  with  interest.  Up- 
on this  Smith  was  let  into  possession  of  the  estate,  and 
enjoyed  the  same  until  the  year  1693,  and  received  the 
profits  of  it  to  a  greater  sum  than  the  purchase  money 
amounted  to.  In  the  year  1694,  by  an  invasion  of  the 
French,  this  estate  was  wholly  ruined  and  made  deso- 
late ;  so  that  from  that  time  to  this,  it  has  been  wholly 
unoccupied. 

The  act  also  takes  notice,  that  this  mortgage,  that 
was  made  in  the  year  1682,  appears  to  be  unsatisfied, 
and  therefore  if  it  is  considered  that  the  legal  estate  was 
originally  in  Sir  Thomas  Lynch,  that  all  the  claim  of 
Smith  is  founded  upon  a  deed  of  purchase,  for  which 
he  never  paid  any  part  of  the  consideration  money,  that 
the  estate  is  now  desolate,  and  if  to  this  is  added  the 
consideration  of  what  a  vast  sum  £6000  principal  money 
with  interest  from  the  year  1682  to  this  day  must 
amount  unto,  in  a  country  where  common  interest  has 
been  always,  I  believe,  at  least  after  the  rate  of  eight  or 
ten  per  cent,  per  annum,  I  think  it  very  obvious  that 
this  act,  which  is  only  to  give  a  family  their  own  estate 
both  in  law  and  equity,  cannot  be  considered  but  as 
much  stronger  than  the  common  foreclosure  of  an  equi- 
ty of  redemption  ;  and  yet,  even  in  that  case,  if  a  mort- 
gage is  very  old,  as  e.  g.  above  twenty  or  thirty  years 


OF  THE  COLONIAL  CONSTITUTIONS.         387 

from  the  execution,  and  no  interest  has  been  paid  upon 
it,  I  apprehend  that  the  court  of  chancery  would  not 
admit  a  mortgagor  to  redeem  against  a  mortgagee  in 
possession,  but  would  look  upon  the  equity  of  redemp- 
tion as  extinguished  by  the  antiquity  of  the  debt :  in  the 
present  case  the  demand  is  of  above  forty  years  stand- 
ing, and  the  equity  of  redemption,  (if  any)  is  founded 
upon  so  unequitable  a  foot,  that  I  jam  of  opinion,  it  is 
just  it  should  be  foreclosed;  nor  do  I  think  it  an  objec- 
tion, that  the  case  of  infancy  is  not  excepted  ;  because, 
if  they  were  major,  a  court  of  equity  would  not  admit 
them  to  redeem  :  and,  therefore,  an  exception  in  their 
favor  would  be  to  no  purpose. 

But,  however,  this  act  is  not  an  immediate  foreclosure 
of  the  equity  of  redemption  ;  but  time  is  given  to  the 
representatives  of  Mr.  Smith,  until  the  30th  of  May 
1725,  to  come  in  and  redeem  if  they  think  fit  ;  and, 
that  they  might,  if  possible,  be  acquainted  with  this 
act,  a  public  advertisement  is  directed  to  be  made  in 
the  Jamaica  Courant,  and  that  your  Lordships  may  see 
that  the  act  was  pursued  in  this  respect,  I  have  annex- 
ed a  Courant  to  my  report  wherein  this  advertisement 
was  made.  But,  this  is  not  the  only  consideration  that 
induced  me  to  be  of  opinion  that  there  was  no  objection 
to  this  act  being  passed  into  law.  It  is  allowed  in  all 
the  American  colonies  as  a  maxim  of  law,  that  a  title  to 
the  possession  of  lands  must  necessarily  be  supported 
by  an  actual  culture  and  planting  of  it ;  and  that  con- 
sequently the  neglect  of  the  one  will  extinguish  the 
other. 

This  notion  is  founded  in  the  nature  of  things ; 
since  it  is  obvious  that  no  colony  can  ever  be  supported 
upon  any  other  foot ;  and,  in  consequence  of  this,  I  be- 


388  OPINIONS  OF  EMINENT  LAWYERS. 

lieve  it  has  been  the  practice  in  every  one  of  the  prov- 
inces in  the  West  Indies,  when  the  patentees  of  lands 
have  for  a  considerable  time  neglected  planting  of  their 
lands,  which  is  a  condition  in  law  either  expressed  or 
implied  annexed  to  their  title,  that  the  assembly  of  such 
provinces  have  passed  acts  for  the  resumption  of  those 
grants,  in  order  to  enable  the  Crown  to  grant  those 
lands  de  novo  to  other  persons,  who  would  in  time  com- 
ply with  the  condition  above  mentioned  to  be  annexed 
to  their  estates. 

And  as  to  this  island  of  Jamaica,  I  find,  that  in  an 
act  passed  in  the  year  1696  and  confirmed  anno  1699, 
and  entitled  "  an  act  for  the  more  speedy  collecting  His 
Majesty's  quit  rents,  fines,  forfeitures  and  amercia- 
ments,"  there  is  a  clause,  by  which  it  is  enacted  that 
every  person  not  inhabiting  within  the  islands,  and  who 
was  possessed  of  land  whereon  no  settlement  had  been 
made,  should  forfeit  the  same  unless  they  accounted  for 
the  arrears  of  quit  rents  and  made  some  settlement  up- 
on their  lands  within  two  years  after  passing  the  act  : 
I  mention  this  only  to  show  that  it  was  the  notion  of 
the  people  of  this  island  that  patentees  were  obliged  to 
plant  their  lands.  And  in  another  act  of  this  island, 
entitled  "an  act  for  settling  the  northeast  part  of  the 
island,"  and  which  was  sent  to  me  by  your  Lordships 
together  with  the  act  now  under  consideration,  it  is 
(inter  alia)  enacted  that  a  very  large  tract  of  land,  for 
which  the  quit  rents  from  the  year  1692  had  not  been 
paid,  should  be  absolutely  vested  in  His  Majesty  ;  and 
it  is  also  enacted  that  every  person  claiming  any  part 
of  the  said  lands,  although  the  quit  rents  had  been 
paid,  if  he  did  not  settle  the  same  within  two  years  af- 
ter passing  the  act,  his  land  should  be  absolutely  vested 


OF    THE    COLONIAL    CONSTITUTIONS.  389 

in  His  Majesty  ;  but  for  the  better  understanding  of 
this  particular,  I  beg  leave  to  refer  your  Lordships  to 
the  last  clause  of  the  last  mentioned  act  ;  and,  moreover, 
the  preamble  of  this  act  is  very  full  as  to  what  I  before 
mentioned,  of  a  settlement  being  necessary  to  secure  a 
title  to  an  estate :  to  apply  this  observation  to  the  act 
now  under  consideration,  your  Lordships  will  be  pleased 
to  observe  that  the  remarkable  period  of  time  which 
they  both  refer  to  is  the  French  invasion  of  the  island 
in  the  year  1694  ;  and  it  is  recited  in  the  preamble  to 
the  present  act,  that,  from  that  time  to  the  passing  of 
the  act,  the  lands  have  been  wholly  deserted  ;  and  that 
during  all  that  time  no  quit  rents  have  been  paid  for 
the  same,  and  this  is  the  only  reason  assigned  for  the 
forfeiture  of  lands  in  the  other  act. 

I  would  also  observe  to  your  Lordships,  that  the  es- 
tate in  question  is  part  of  those  desert  lands  in  the  par- 
ish of  Saint  Thomas,  in  the  east  part  of  the  island,  and 
which,  consequently,  by  virtue  of  the  act  I  last  men- 
tioned to  your  Lordships,  are  to  be  forfeited  unless  they 
are  settled  within  two  years  after  the  passing  of  the 
said  act ;  and,  therefore,  I  cannot  but  think  the  present 
act  is  for  the  benefit  of  all  parties  ;  for  if  the  lands  are 
not  settled  within  the  said  two  years,  they  will  be  for- 
feited to  the  Crown,  and  both  will  lose  them.  That 
the  heirs  of  Mr.  Smith  will  make  a  -settlement  there  is 
no  reason  to  imagine  after  so  long  a  dereliction,  nor  can 
it  be  supposed  that  the  representatives  of  Sir  Thomas 
Lynch  will  lay  out  their  money  without  some  act  of 
this  kind  for  their  security  ;  and  it  is  observable,  that  in 
this  act  the  time  given  to  the  Smiths  to  redeem  does  not 
determine  till  the  year  1725,  whereas  the  time  given 
by  the  government  for  making  settlements,  upon  pain 


390  OPINIONS    OF  EMINENT    LAWYERS. 

of  forfeiture,  expires  in  the  year  1724,  so  that  the 
Smiths  have  for  almost  a  whole  year  the  option  wheth- 
er they  will  or  will  not  take  in  such  improvements  as 
must  be  made  within  the  said  two  years. 

I  shall  not  trouble  your  Lordships  any  further  upon 
this  occasion  :  the  consideration  of  these  particulars, 
which  appear  upon  the  face  of  the  records  themselves, 
did  formerly,  and  do  still,  oblige  me  to  be  of  opinion, 
that  there  is  no  objection  to  this  act  being  passed  into 

law. 

RICH.   WEST. 
July  11,  1723. 

(13.)    The   Attorney-General,  Northeifs,  objection   to 
Barbadoes  acts,  as  unreasonable  and  unjust. 
To  the  Right   Honorable   the  Lords    Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  several 
laws  of  Barbadoes,  mentioned  in  the  printed  book  of 
laws  for  that  island,  therein  numbered  41,  42,  108, 145. 
The  design  of  which  acts  being  to  ascertain  the  fees  of 
the  several  officers  of  that  island  concerned  therein,  and 
to  oblige  them  to  hang  up  tables  of  those  fees  in  their 
respective  offices  and  courts  wherein  they  execute  their 
employments,  thereby  to  prevent  extortion  and  oppres- 
sion there,  if  the  fees  be  reasonable  (of  which  I  am  not 
a  judge,)  I  have  no  objection  against  the  design  of  the 
said  acts,  but  I  am  of  opinion  that  one  of  the  remedies 
appointed  by  the  said  acts  for  punishing  the  offenders 
against  the  said  acts,  is  unreasonable  and  unjust,  espe- 
cially as  to  the  secretary,  provost-marshal,  and  the  reg- 
ister in  chancery  of  that  island,  who  held  their  offices 


OF  THE  COLONIAL  CONSTITUTIONS.  391 

by  virtue  of  letters  patent  of  His  Majesty  or  his  prede- 
cessor ;  for  by  the  act  No.  41,  it  is  provided  that  no  of- 
ficer whatsoever  belonging  to  that  island,  &c.  by  him- 
self, deputy,  clerk,  or  servant,  shall,  after  publication 
thereof,  receive  or  take  any  other  fee  or  fees  for  any 
business  named  therein,  than  is  for  the  same  in  that  act 
expressed,  under  penalty  of  forfeiting  or  losing  his  or 
their  office  or  offices,  and  lying  in  the  common  gaol 
without  bail  or  mainprize  the  space  of  one  month,  the 
same  to  be  immediately  executed  upon  him  or  them,  up- 
on his  or  their  conviction,  upon  the  oath  of  one  or  more 
witnesses,  or  other  sufficient  proof  before  the  Governor 
or  any  justice  of  the  peace  ;  which  offence,  I  am  hum- 
bly of  opinion,  ought  to  be  determined  by  a  trial  in  the 
courts  of  law,  where  the  officer  may  defend  himself,  and 
not  by  the  Governor  or  any  justice  of  the  peace,  upon 
the  oath  of  one  witness,  as  it  may  be  by  that  law.  The 
act,  No.  42,  depends  upon,  and  is  only  for  the  better  ex- 
ecution of  that  act. 

Against  the  act  No.  108  there  is  the  same  objection  ; 
for,  by  that  act,  the  officers  taking  fees  contrary  to  the 
establishment  therein,  are  to  lose  their  offices,  and  be 
committed  to  the  common  gaol,  without  bail  or  main- 
prize,  for  the  space  of  three  months,  and  the  same  to  be 
immediately  executed  upon  him  or  them,  upon  his  or 
their  conviction,  by  the  oaths  of  two  credible  witnesses, 
or  confession  of  the  party  accused,  before  the  Governor 
or  any  justice  of  the  peace. 

Against  the  act  No.  145  there  is  the  same  objection, 
for  thereby  it  is  provided  that  the  secretary  of  the  is- 
land, or  his  deputy  or  deputies,  taking  fees  contrary  to 
that  act,  shall  be  proceeded  against  as  extortioners,  and 
for  ever  after  be  made  incapable  of  acting  in  any  such 


392  OPINIONS    OP  EMINENT  LAWYERS. 

office  or  any  office  of  public  trust  whatsoever  within 
that  island,  and  the  same  to  be  executed  upon  him  or 
them,  upon  his  or  their  conviction,  by  his  or  their  con- 
fession, or  by  the  oath  of  one  or  more  witnesses,  before 
the  Governor  or  any  two  of  His  Majesty's  justices  of  the 
peace  there  ;  wherefore,  I  am  humbly  of  opinion  that 
the  said  acts,  with  the  said  powers,  are  not  fit  to  re- 
ceive His  Majesty's  approbation,  if  they  have  not  al- 
ready had  the  approbation  of  the  Crown. 

EDW.    NORTHEY. 
December  16,  1717. 

(14.)  Mr.  West's  objection  to  an  act  of  the  same  As- 
sembly, for  licensing  laivyers  npon  the  same  principle. 
To  the    Right  Honorable  the  Lords  Commissioners    of 
Trade  and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships7  commands,  I  have 
perused  a  law  passed  in  the  general  assembly  in  the  is- 
land of  Barbadoes  entitled  "an  act  to  empower  licentiate 
lawyers  to  practise  as  barristers  in  the  said  island,  1715," 
by  which  law  it  is  enacted  that  every  person  that  is,  or 
shall  be  for  the  future,  licensed  under  the  hand  and  seal 
of  the  Governor  ot  the  said  island,  shall  be  authorized  to 
practise  the  law  as  fully  as  if  he  were  a  regular  bar- 
rister. 

1.  The  committee  of  correspondence  of  the  said  island 
do,  in  their  letter  to  their  agents  in  England,  as  reasons 
for  passing  the  said  law,  urge  that  it  had  been  the  cus- 
tom of  the  said  island  to  permit  licentiates  to  practise  as 
lawyers  and  that  such  custom  had  never  been  attended 
by  any  evil  consequences. 

2.  That  the  said  custom  had,  in  their  opinion,  been 
approved  of  by  the  Kings  and  Queens  of  Great  Britain  : 


OF  THE  COLONIAL  CONSTITUTIONS.         393 

since  the  Crown  had.  frequently  appointed  such  licen- 
tiates to  act  as  attornies  and  solicitors-general  in  the  said 
inland. 

3.  They  urge,  that  the  said  island  was  liable  to  seve- 
ral inconveniences,  from  their  not  having  a  sufficient 
number  of  barristers  to  transact  the  law  business  of  the 
said  island.  . 

I  have  also,  my  Lords,  been  attended  by  Mr.  Walker, 
and  other  gentlemen,  who  approved  of  the  said  acts  be- 
ing passed  into  a  law,  who,  in  answer  to  the  before-men- 
tioned reasons  (1.)  of  the  committee  of  correspondence, 
did  allege  that  the  usage  of  licentiates,  practising  as 
lawyers,  did,  as  appears  from  the  preamble  to  the  act, 
arise  from  necessityj  and  there  being  no  such  necessityj 
so  much  as  pretended  to  be>  now  existing^  there  can  be 
no  reason  drawn  from  thence  to  discourage  the  profes- 
sion of  the  law  (so  mnch  as  it  would  be)  by  the  perpet- 
ual establishment  of  the  said  custom  in  passing  this  act; 

(2.)  That  though j  at  the  first  settling  in  the  said  is^ 
landj  the  affairs  of  the  CroWn  Were  left  to  the  manage* 
ment  of  licentiates,  it  was  owing  to  the  necessity  before- 
mentioned,  but  that  ever  since  the  said  necessity  has 
been  removed  (which  is  now  two  and  thirty  years  ago,) 
the  Crown  has  always,  by  pateut;  appointed  regular  bar^ 
risters  to  be  attomies-general  in  that  island. 

(3.)  And  as  to  the  third  reason,  they  urge;  that  their 
not  having  a  sufficient  number  of  barristers  among  them 
is  owing  to  the  permitting  licentiates  to  practise  us  bar* 
risters ; 

I  beg  leave,  therefore,  to  observe  to  your  Lordships, 

that  as  the  ignorance  of  the  British  law  does  naturally 

tend  to  weaken  that  connexion  and  union  which  ought 

to  be  kept  up  between  the  mother  couutry  and  the  col- 

51 


394  OPINIONS  OF  EMINENT  LAWYERS. 

ony,  therefore  I  cannot  but  think  this  law  may  be  at- 
tended with  very  ill  consequences  :  since  it  is  obvious 
that  English  gentlemen,  who  are  regularly  called  to  the 
bar,  will  have  but  little  encouragement  to  venture 
abroad,  when  they  see  a  perpetual  establishment  of  li- 
centiates in  that  island  ;  and  which  may  probably  cre- 
ate such  a  precedent  as  may  induce  all  the  other  colo- 
nies in  the  West  Indies  to  apply  for  and  obtain  the  like 
law,  which,  as  it  will  leave  them  little  or  no  reason  to 
send  their  sons  to  be  educated  here,  in  England,  will 
naturally  alienate  them  from  the  knowledge  and  love 
of  the  laws  of  Great  Britain. 

I  must  further  take  notice,  that  there  are  no  qualifica- 
tions whatsoever  relating  either  to  oaths  or  religion  pre- 
scribed by  the  act.  in  order  to  obtain  such  license  to 
practise  the  law,  but  is  wholly  left  to  the  arbitrary  dis- 
position of  the  Governor,  who  in  consequence  of  it  is  en- 
abled to  permit  even  his  footman  or  his  black  to  prac- 
tise as  a  barrister  ;  and  since  the  Governor  has  no  par- 
ticular power,  by  his  instructions,  to  grant  such  licenses. 
1  believe  your  Lordships  will  think  it  more  for  the  hon- 
or of  the  prerogative,  that  in  case  there  should  be  any 
deficiency  of  barristers  in  the  island,  they  should  be  ob- 
liged to  apply  for  licenses  at  home. 

However,  I  cannot  but  own  that  it  would  be  a  hard- 
ship to  take  away  the  privilege  of  practising  from  those 
who  have  applied  themselves  to  the  law  in  that  island, 
and  have  already  been,  bona  fide,  licensed  ;  therefore, 
upon  the  whole  matter,  I  am  of  opinion  that  the  law 
should  not  be  wholly  rejected,  because  that  might  per- 
haps deprive  the  present  licentiates  of  the  benefit  of 
practising  ;  but  ordered  to  lie  by  ;  and  I  hope  your 
Lordships  will  think  proper  to  write  to  the  Governor 


OP  THE  COLONIAL  CONSTITUTIONS.  395 

not  to  grant  any  such  licenses  for  the  future,  but  I  sub- 
mit the  whole  to  jour  Lordships. 

RICH.  WEST. 
June  25,  1718. 

(15.)  Mr.  West's  objections  to  an  act  of  the  South-Car- 
olina Assembly -,  incorporating  Gharlc-stoivn,  upon  a  new 
qrinciple. 
To  the   Eight  Honorable,  the  Lords  Commissioners  of 

Trade  and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  an  act,  passed  in  Carolina,  en- 
titled "an  act  for  the  good  government  of  Charlestown," 
by  which  act  Charlestown  is  erected  into  a  city,  and  the 
government  of  it,  as  such,  is  lodged  in  a  mayor,  six  al- 
dermen, twelve  common  councilmen,  and  a  recorder,  be- 
sides whom  there  are  several  other  subordinate  officers 
appointed. 

And,  for  the  better  administration  of  justice  within 
the  new  erected  city,  the  mayor,  recorder,  and  four  al- 
dermen, have  power  to  determine  petit  larcenies,  &c.  ac- 
cording to  the  laws  of  Great  Britain ;  and  are  also  em- 
powered and  obliged  to  hold,  every  two  months,  a  court 
of  common  pleas,  to  determine  all  actions  not  exceeding 
fifty  pounds  sterling  ;  and  also  to  hold  plea  in  eject- 
ment for  lands  within  the  said  city,  and  to  determine 
the  same. 

There  are  also  a  great  many  other  privileges  and 
powers  in  the  bill  that  are  usually  granted  to  new  erec- 
ted corporations,  to  the  greatest  part  of  which  I  have  no 
objection  to  their  being  confirmed  ;  but  yet  there  are 
two  or  three  particulars  in  the  bill,  which  to  me  seem 
altogether  unreasonable  and  contrary  to  the  method  of 


396  OPINIONS    OF    EMINENT    LAWYERS. 

establishing  the   government  of  cities  in  England, 

1st.  It  is  usual,  in  England,  and  most  equitable,  that 
the  offices,  at  least  the  mayor,  and  common  councilmen, 
should  be  annual ;  but  in  this  new  erected  city,  though 
indeed  there  is  a  rotation  as  to  the  office  of  mayor 
among  the  persons  first  nominated  in  this  act,  yet  the 
persons  so  named  are  to  be  possessed  of  their  several 
offices  during  their  lives. 

2d.  Whenever,  by  death  or  any  other  means,  a  vacan- 
cy happens  in  any  of  the  said  offices  of  mayor,  aldermen, 
or  common  council,  tfre  freemen  at  large  of  the  city  are 
totally  excluded  from  having  any  share  in  the  election 
of  a  successor ;  but  the  mayor,  aldermen  and  common 
councilmen,  for  the  time  being,  are  empowered  from, 
time  to  time  ^o  fill  up  every  vacancy  that  shall  happen 
among  them  with  such  persons  only  as  they  themselves, 
shall  think  proper. 

3d.  The  mayor,  aldermen  and  common  council  are  al-i 
so,  by  this  act,  invested  with  the  sole  power  of  making 
such  by-laws  and.  ordinances  as  they  shall  think  proper/ 
which  are  to  be  binding  to  all  the  freemen  within  the 
city. 

If  the  act,  therefore,  is  considered  in,  this  light,  that 
the  nineteen  gentlemen  who  are  nominated  in  the  act  to 
be  first  mayor,  aldermen  and  common  council,  are  posr 
sessed  of  their  offices  for  life,  have  the  sole  power  of 
choosing  their  own  successors,  and  the  sole  power  of 
making  such  by  Jaws  as  they  shall  think  fit,  the  gov- 
ernment established  by  this  act  is  the  completest  oligar- 
chy that  ever  was  seen  ;  since  the  entire  government 
of  this  city  and  of  all  the  persons  who  shall  ever  dwell, 
in  it.  seems  to  be  vested  in  these  nineteen  gentlemen, 
their  heirs,  and  assigns,  forever. 


OF  THE  COLONIAL  CONSTITUTIONS.         397 

But  besides  what  I  have  already  mentioned  to  your 
Lordships,  there  is  another  objection  to  this  act  which 
has  been  represented  to  me  by  Mr.  Shelton  on  the  be^ 
half  of  the  major  part  of  the  inhabitants  of  the  parish  of 
Charlestown,  which  is,  that  this  act  of  incorporation 
was  passed  against  their  consents  and  contrary  to  their 
inclinations,  and  in  order  to  justify  what  he  affirmed,  he 
left  with  me  tfye  copy  of  a  petition  to  the  assembly  of 
the  province  of  Carolina,  of  which  he  did,  at  the  same 
time,  produce  the  original,  signed  by  no  less  than  one 
hnndred  and  thirteen  of  the  inhabitants  of  the  town, 
which,  as  I  am  informed,  does  not  contain  in  it  quite 
three  hundred  persons,  complaining  of  this  act  (then  a 
bill  depending  in  their  house,)  and  praying  that  it 
might  not  pass  irjto  law. 

How  far  the  allegations  of  Mr.  Shelton  are  true  or  not,  I 
cannot  pretend  to  say,  but  if,  upon  inquiry,  they  shall  ap- 
pear to  be  well  founded,  for  that  and  the  other  reasons  I 
have  before-mentioned,  I  am  of  opinion,  that  this  act  is 
not  proper  to  be  passed  into  law, 

April  11,  1723,  RICH,  WEST. 

(3.)  1  lie  opinion  of  the  Attorney  and  Solicitor-Gene^ 
ral,  Yorke  and  Wea?g^  on  the  uncircumspzct  mode  of 
continuing  laws,  used  by  the  Jamaica  Assembly. 

To   the   Right  Honorable   the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships, 

In  obedience  to  your  Lordships'  commands,  signified  to 
us  by  letter  from  Mr.  Popple,  transmitting  to  us  copies 
of  two  bills  sent  over  from  Jamaica,  the  one  entitled 
"an  act  for  granting- a  revenue  to  His  Majesty,  his  heirs 
and  successors,  for  the  support  of  the  government  of  this 
island,  and  perpetuating  the  acts  and  laws  thereof  as 
they  now  stand  and  are  uaed  ;"  and  the  other,  entitled 


OPINIONS  OF  EMINENT  LAWYERS. 

"an  act  to  augment  the  salary  of  his  Grace  the  Duke  of 
Portland  during  his  residence  in  this  island  as  Gover- 
nor ;"  together  with  an  extract  of  his  Grace  the  Duke 
of  Portland's  letter,  and  copies  of  other  papers  upon  this 
subject,  and  requiring  us  to  let  your  Lordships  know 
whether  we  have  any  objection  to  the  said  bills  in  point 
of  law  ::  we  have  considered  the  said  copies  of  bills,  and 
other  papers  referred  to  us,  and  herewith  returned,  and 
do  certify  your  Lcrdships,  that  the  principal  considera- 
tions arising  upon  these,  two  bills,  appear  to  us  to  be 
rather  matters  of  prudence  and  policy,  than  law,  and, 
therefore,  not  to  be  strictly  within  your  Lordships'  di- 
rection to  us. 

As  to  the  revenue  bill,  we  cannot  but  observe  to  your 
Lordships,  that  though  we  do  not  find  any  species  of 
commodities  charged  with  imposts  by  this  bill  which 
were  not  charged  by  the  former  revenue  act,  yet  the 
imposts  upon  several  species  are  greatly  increased,  and 
particularly  upon  certain  liquors  imported  from  Europe. 

The  duties  upon  sugars  and  indigo  are  much  lessened 
by  this  bill,  particularly  that  upon  indigo,  from  Is.  6d. 
to  3d.  per  pound.  We  observe  by  the  copy  of  his  Grace 
the  Duke  of  Portland's  qit^  rie-s}  sent  down  to  us,  that  it 
was  a  matter  of  doubt,  in  Jamaica,  whether  this  reduc- 
tion of  those  duties  was  consistent  with  his  Grace's  92d 
instruction  ;  but  upon  consideration  of  that  instruction, 
this  reduction  does  not  appear  to  us  to  be  contrary  to 
the  terms  of  it,  because  it  cannot  take  off,  or  in  any 
wise  affect  the  general  prohibition  of  trade  with  the  sub- 
jects of  France,  for  the  duty  can  take  place  only  upon 
indigo  lawfully  imported,  and  not  such  as  is  prohibited. 
But  if  the  trade  of  that  commodity  be  chiefly  in  the 
hands  of  the  French,  and,  notwithstanding  the  general 
prohibition  of  trade,  has  been  carried  on  with  them  in  a 


OF  THE  COLONIAL  CONSTITUTIONS.  399 

clandestine  manner  (which  the  Duke  of  Portland's  let- 
ter imports,)  whether  this  reduction  of  the  duty  will  in 
consequence  tend  to  encourage  that  clandestine  trade, 
or  rather  to  increase  the  open  importation  of  indigo  in  a 
lawful  way,  is  what  we  are  not  sufficiently  enabled  to 
judge  of, but  is  proper  for  your  Lordships' consideration, 

It  is  further  to  be  observed  upon  this  bill,  that  the 
revenue  given  by  it  is  made  perpetual,  and  the  laws  con- 
tinued by  it  are  continued  for  ever,  which  makes  it  the 
more  necessary  to  consider  whether  the  provision  be 
such  as  will  be  sufficient  to  answer  the  exigencies  of  the 
government ;  for  if  it  should  happen  in  the  event  not  to 
prove  so,  the  people  of  the  island  having  their  laws  se- 
cured to  them  in  perpetuity,  may  think  themselves  in  a 
better  condition  to  withstand  even  reasonable  demands 
which  may  hereafter  be  made  by  the  government,  to  sup- 
ply any  deficiencies  on  that  head,  than  they  have  hith- 
erto been  whilst  their  laws  were  temporary  and  preca- 
rious ;  and  this  seems  to  us  to  be  of  the  greater  weight, 
by  reason  of  the  unusual  method  taken  to  annex  to  this 
bill  an  estimate  of  the  annual  expenses  of  His  Majes- 
ty's government  in  this  island,  by  way  of  debtor  and 
creditor,  which  by  reference  is  made  a  part  of  the  bill 
itself,  and  is  computed  to  amount  to  £8000  per  annum, 
and  the  clause  whereby  the  assembly  have  engaged 
themselves  to  supply  deficiencies,  is  only  upon  the  con- 
tingency of  this  revenue  falling  short  of  that  sum,  and 
to  make  that  good. 

The  clause  concerning  the  laws  of  the  island  and  their 
continuance  is  penned  in  a  manner  much  less  liable  to 
exception  than  that  sent  over  the  last  year,  though 
not  so  free  from  objection  as  might  have  been. 

The  effect  of  it  is,  that  this  act  and  all  acts  and  laws 


400  OPINIONS  OF  EMINENT  LAWYERS. 

as  they  now  stand  and  are  accepted  and  used  in  Ja- 
maica5  are  thereby  declared  to  be  and  remain  in  force 
for  ever,  (except  the  present  revenue  act;  and  four  acts 
of  assembly  lately  passed,  which  are  particularly  spec- 

ified.) 

This  clause   concerns  two   kinds  of  laws  ;  1st,  such 

laws  of  England  as  have  been  accepted  and  used  in  Ja- 
maica ;  2d,  acts  of  assembly  of  the  island  :  we  appre- 
hend from  the  words  of  this  clause,  and  from  the  counj 
cil's  answer  to  the  Duke  of  Portland's  4th  and  5th  qiix- 
rie-s,  that  the  first  sort  of  laws  are  what  the  assembly 
had  now  especially  in  view/ 

But  as  it  is  confined  to  acts  and  laws  as  they  stand 
accepted  and  used  in  the  island,  we  conceive  no  incon- 
venience can  follow  from  it,  because  no  other  part  of 
the  law  of  England  will  be  established  thereby,  but 
such  as  by  acceptance  and  usage  in  Jamaica  has  already 
gained  the  force  of  a  law  of  that  island,  and  such  would 
continue  to  be  the  laws  there  without  the  assistance  of 
this  bill 

The  greatest  objection  to  this  clause  concerns  the  acts 
of  assembly  of  the  island  ;  for  as  it  is  now  penned,  all 
their  temporary  acts  of  assembly  which  are  at  present 
in  force  will  be  made  perpetual  (except  the  four,  which 
are  particularly  excepted,)  and  it  can  hardly  happen  but 
some  of  their  temporary  laws  are  not  fit  to  be  continued 
for  ever,  at  least  it  seems  fit,  that  they  should  be  fully 
looked  into  and  considered,  before  they  receive  such  an 
establishment. 

As  to  the  bill  for  augmenting  the  Duke  of  Portland's 

salary,  we  have  \\o  objection,  in  point  of  law,  against  the 
same. 


July  6,  1725.  C.  WEARG. 


OF  THE  COLONIAL  CONSTITUTIONS.          401 

(17.)  The  Solicitor-General  Eyre's  objections  to  an  out 
of  the  Jamaica  Assembly,  for  its  unreasonableness. 
To  the  Right  Hon.    the  Lords  Commissioners  of  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
by  Mr.  Popple,  in  the  letter  hereunto  annexed,  I  have 
considered  of  an  act  passed  at  Jamaica,  entitled  "an 
act  for  regulating  fees,"  and  particularly  of  a  clause 
which  obliges  lawyers  to  take  retaining  fees  under  a 
penalty,  and  of  one  other  clause  for  qualifying  of  wri- 
ting clerks  ;  and  having  heard  Mr.  Baber,  on  behalf  of 
himself,  of  Mr.  Compier,  receiver- general  of  that  island, 
and  of  Mr.  Winter,  clerk  or  register  of  the  court  of  chan- 
cery there,  against  the  said  act ;  and  colonel  Lloyd  and 
Mr.  Ay  liner,  one  of  the  members  of  the  assembly  ojf  Ja- 
maica, for  it ;  and  having  compared  this  act  with  an  act 
which  passed  in  Jamaica  by  the  same  title  in  1684 :  I 
most  humbly  certify  your  Lordships,  that  in  my  hum- 
ble opinion  the  officers  have  no  reason  to  complain,  for 
this  act  is  more  for  their  fair  profit  and  advantage  than 
the  former ;  but  the  clauses  which  oblige  lawyers  to 
take  retaining  fees  under  a  penalty,  and  restrain  plain- 
tiffs from  retaining  more  counsel  than  one,  till  ten  days 
after  declaration  be  delivered  or  asubpoena  in  the  cause 
served  on,  the  defendant,  and  the  clause  which  requires 
certain  qualifications  in  writing-clerks,  seem  to  me  to 
be  very  unreasonable,  and  there  is  nothing  in  the  law 
or  practice  of  England  which  favors  any  such  regula- 
tions. I  have  no  objection  to  any  other  part  of  the  act, 
but  think  it  reasonable  and  for  the  good  of  the  island. 

R.  EYRE. 
May  12,  1710. 

52 


402  OPINIONS  OF  EMINENT  LAWYERS. 

(18.)    Th?  objections  of  the  Attorney  and  So^citor- 
Gr,neral,  Ryder  and  Murray,  to  a  law  of  North  Carolina, 
as  being  contrary  to  reason,  inconsistent  ivith  the  laws, 
and  prejudicial  t>  this  kingdom. 
To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  desire,  signified  to 
us  by  Mr.  Hill,  in  his  letter  of  the  2d  of  April  last,  rep- 
resenting that  your  Lordships  having  under  your  con- 
sideration a  memorial  of  several  British  merchants', 
praying  the  repeal  of  an  act  passed  in  the  province  of 
North  Carolina  in  the  year  1715,  by  the  proprietors  of 
the  said  province,  entitled  "an  act  concerning  attorniees 
from  foreign  parts,  and  for  giving  priority  to  country 
debts,"  and  transmitting  the  annexed  copy  of  the  said 
act,  and  desiring  our  opinion  with  respect  to  the  validi- 
ty thereof,  and  whether  the  same  is  or  is  not  repealable 
by  the  Crown,  it  having  been  continued  in  use  and  sub- 
mitted to  in  the  said  province  from  the  time  of  the  pas- 
sing thereof :  we  have  considered  the  annexed  law,  and 
are  of  opinion  that  such  part  of  it  as  postpones  the  exe- 
cution on  judgments  for  foreign  debts,  in  the  manner 
therein  provided,  is  contrary  to  reason,  inconsistent  with 
the  laws,  and  greatly  prejudicial  to  the  interests  of  this 
kingdom  ;  and,  therefore,  unwarranted  by  the  charter, 
and,  consequently,  void,  and  we  are  of  opinion,  that  His 
Majesty  may  declare  the  same  to  be  so,  and  his  royal 

disallowance  thereof. 

D.  RYDER. 

June  3,  1747.  W.  MURRAY. 


OF  THE  COLONIAL  CONSTITUTIONS.         403 

(19.) -Mr-  Dane's  observations  on  the  act  of  the  Virginia 
Assembly,  for  relief  of  the  College  >f  William  and  Mary. 
To  the  Right  Hon.,  the  Lords  Commissioners  of  Trade 

and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  of  the  20th  instant,  wherein 
your  Lordships  are  pleased  to  desire  my  opinion,  in 
point  of  law,  whether  the  £290  per  annum,  appropria- 
ted by  the  act  (passed  in  Virginia  in  1726,  entitled  an 
act  for  laying  a  duty  upon  liquors)  for  the  relief  of  the 
college  of  William  and  Mary,  is  thereby  directed  to  be 
solely  applied  for,  and  towards,  maintaining  and  support 
ing  the  full  number  of  masters  and  professors  who  are 
to  reside  in  the  said  college.  I  have  considered  of 
the  same,  and  am  humbly  of  opinion,  though  the  pream- 
ble to  the  clause  which  appropriates  the  £200  per  an- 
num seems  particularly  calculated  to  provide  for  the 
maintenance  of  the  full  number  of  masters  and  profes- 
sors ;  yet,  the  enacting  part  is  for  the  relief  of  the  col- 
lege in  general,  and  directs  the  payment  of  the  duties 
to  the  trustees,  until  the  transfer  be  made  to  the  corpo- 
ration itself.  This  being,  I  apprehend,  altogether  rela- 
tive to  the  methods  prescribed  by  the  charter,  the  trus- 
tees were  enjoined  to  lay  out  what  money  was  given 
them,  in  the  first  place,  only  for  building  proper  edifices 
for  the  society,  and  for  the  purchase  of  books  and  other 
necessaries,  until  the  said  college  shall  be  actually  built 
and  founded  ;  then  they  were  to  assign  what  land  and 
money  they  had  to  the  president  and  masters,  so  that 
the  charter  expressly  excludes  the  masters  and  profes- 
sors from  any  advantage,  until  the  college  was  finished 
and  provided  with  all  necessaries. 


404  OPINIONS  OF  EMINENT  LAWYERS. 

The  legislature  had,  indeed,  in  view,  the  provision 
and  maintenance  of  the  society,  to  encourage  them  in 
their  studies  and  the  service  for  which  th,e  college  was 
founded. — that  was  their  principal  design  ;  but  their 
intention  being  plainly  subjected  to  the  charter,  must 
be  guided  by  it  ;  and,  indeed,  those  general  words  of  re- 
lief may,  I  conceive,  very  properly  receive  the  construc- 
tion here  given,  because  the  soo'ner  the  college  is  built, 
by  this  additional  iucome  of  £200  per  annum,  the  soon- 
er will  they  receive  this  allowance. 

That  the  president,  master  and  fellows,  cannot  have 
immediately  this  £200  a  year,  is,  I  apprehend,  self-evi- 
dent, because  the  treasurer  is  directed  to  pass  it  half- 
yearly  to  the  trustees  until  it  shall  be  transferred,  and 
from  such  transfer,  then  to  the  suppprt  of  the  masters 
and  professors  ;  it  is  not  to  be  for  their  support  till  after 
the  transfer,  and,  by  the  charter,  no  transfer  can  be,  un-. 
til  the  college  be  built.  If  there  hacj  been  the  same 
words  in  that  part  of  the  clause  concerning  the  payment 
to  the  trustees  half  yearly,  that  the  trustees  should  pay 
these  sums  to  the  support  of  the  masters,  as  there  are 
after  the  transfer,  they  might  then  have  had  some  col- 
or £or  this  demand  ;  but  it  is  •\yholly  relative  to  the 
charter,  which  orders  and  directs  the  building  and  other 
necessaries  to  be  first  made  and  provided,  before  any 
salary  can  be  allowed  the  professors.  But  what  makes 
it  clear,  I  apprehend,  even  to  a  demonstration,  that  the 
clause  cannot  be  considered  without  having  relation  to 
the  charter,  is,  that  no  trustees  are  actually  named  in 
the  clause,  but  the  trustees  of  the  college  :  and,  there- 
fore, should  it  not  have  a  reference  to  the  charter,  the 
clause  itself  would  be  entirely  void  and  of  no  effect,  for 
there  would  be  then  no  one  empowered  to  receive  this 


OF  THE  COLONIAL  CONSTITUTIONS.          405 

£200    per    annum,    for    any    purposes    at   all. 

But  I  would  submit  it  to  your  Lordships'  considera- 
tion, whether  it  might  not  be  proper  to  prevent  design- 
ing men  hereafter  from  putting  a  construction  upor  that 
clause  different  from  what  seems  to  be  the  most  equita- 
ble and  natural  one,  for  your  Lordships  to  recommend  to 
His  Majesty,  to  signify  to  the  Governor  of  this  colony, 
that  the  construction  I  humbly  put  upon  this  clause, 
(supposing  it  is  agreeable  with  your  Lorqlships'  senti- 
ments) is  the  sense  His  Majesty  would  have  it  taken  in, 
This,  with  humble  submission,  would  entirely  prevent 
future  misapplications,  supposing  there  was  an  inclina* 

tion  in  any  One  to  do  it. 

FRAN.  FANE, 
April  25,  1727. 

(20.)  The  objections  of  the  Attorney-General  Northty, 
on  som?  of  the  Virginia  acts,  in  1701. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  humble  obedience  to  your  Lordships'  order  of  ref- 
erence, signified  to  me  by  Mr.  Popple,  I  have  perused 
and. considered  of  the  several  laws  hereafter  mentioned, 
passed  in  the  general  assembly  of  Virginia  in  Dec.  1700, 
August  1701,  and  May  and  August  1702,  viz  :  "an  act, 
for  continuing  the  act  prohibiting  the  exportation  of 
Indian  corn  ;"  "-an  act,  making  the  French  refugees  in- 
habiting at  the  Mannikin  town  and  the  parts  adjacent,  a 
distinct  parish  by  themselves,  and  exempting  them 
from  the  payment  of  public  and  county  levies,  for  seven 
years  ;"  "an  act,  for  more  effectual  and  speedy  carrying 
on  the  revisal  of  the  laws  ;"  "an  act  for  the  raising  a 
public  levy  j"  "an  act,  for  the  more  effectual  apprehend* 


406  OPINIONS  OF  EMINENT  LAWYERS. 

ing  an  outlying  negro,  who  hath  committed  divers  rob- 
beries and  offenoes  ;"  "an  act,  giving  power  to  the  sher- 
iffs attending  the  general  court,  to  summon  jurors  and 
evidences,  within  the  city  of  Williamsburgh,  and  one 
half  a  mile  round  the  same ;"  "an  act,  continuing  the 
acts  laying  impositions  on  liquors,  servants  and  slaves, 
until  the  25th  of  December,  1703  ;"  "an  act,  giving  fur- 
ther directions  in  building  the  capitol.  and  for  building  a 
public  prison  ;"  "an  act  for  dividing  King  and  Queen 
county  ;"  "an  act  for  the  better  strengthening  the  fron- 
tiers, and  discovering  the  approaches  of  an  enemy  ;';  "an 
ordinance  of  assembly,  prohibiting  the  ordinary  keep- 
ers to  entertain,  &c.  the  workmen  employed  for  build- 
ing the  capitol;"  "an  ordinance  of  assembly,  for  settling 
the  bounds  of  Isle  of  Wight,  Surrey,  and  Charles  City 
counties,  on  the  south  side  of  Black  Water  Swamp  ;" 
"an  act,  for  continuing,  meeting,  and  sitting,  of  general 
.  assemblies,  in  case  of  the  death,  or  demise,  of  His  Maj- 
esty, his  heirs,  and  successors  ;"  "an  act  to  prevent 
masters  of  ships  or  vessels  running  away  after  embar- 
goes are  laid  ;"  -'an  ordinance  of  assembly,  for  settling 
the  dividing  lines  between  the  counties  of  Isle  of  Wight, 
Surrey,  Charles  City,  and  Nansimond,  on  the  south  side 
of  Black  Water  Swamp ;"  "an  act  for  the  regulation 
and  settlement  of  ferries,  for  dispatch  of  public  express- 
es, and  for  the  speedy  transporting  of  forces  over  rivers 
and  creeks  in  time  of  danger  ;"  "an  act,  for  prohibiting 
seamen  being  harbored  or  entertained  on  shore  ;"  "an 
act  for  dividing  Charles  City  county  ;"  "an  act  for  rais- 
ing a  public  levy  ;"  "an  ordinance  of  assembly,  for  the 
defence  of  the  country  in  time  of  danger  ;"  some  of 
which  laws,  viz  :  the  act,  for  continuing  an.  act  prohibi- 
ting the  exportation  of  Indian  com  j  the  act  made  in 


OF  THE  COLONIAL  CONSTITUTIONS.  407 

1700,  for  raising  a  public  levy  ;  and  the  act,  for  continu- 
ing the  acts  laying  impositions  on  liquors,  &c.  I  find  are 
expired  ;  and  the  ordinance  of  assembly,  made  in  1701, 
for  settling  the  bounds  of  the  Isle  of  Wight,  &c.  is  re- 
pealed. The  rest  of  the  said  laws,  I  conceive,  are  agree- 
able to  law  and  justice,  and  do  not  contain  any  thing 
prejudicial  to  Her  Majesty's  prerogative,  save  only  such 
of  them,  and  in  such  points  and  particulars  only,  as  are 
hereinafter  mentioned  and  observed  to  your  Lordships, 
viz  :  as  to  the  act  for  exempting  the  French  refugees 
from  the  payment  of  public  and  county  levies  for  seven 
years,  I  have  no  objection  to  it,  provided  that  the  public 
and  county  levies  be  taken  to  be  such  as  were  in  force 
at  the  time  of  making  that  act. 

As  to  the  act  for  the  revisal  of  the  laws,  as  I  have 
not  seen  the  powers  given  by  the  act  of  the  27th  of 
April  1699,  referred  to  by  this  act,  I  cannot  judge 
whether  this  be  proper  to  be  confirmed  :  if  the  powers 
thereby  given  to  make  laws,  it  is  not  (I  conceive)  fit  to 
be  confirmed  ;  if  only  to  prepare  to  lay  before  the  as- 
sembly, it  will  need  no  confirmation.  . 

As  to  the  act  for  apprehending  au  outlying  negro  who 
has  committed  divers  robberies  and  offences,  the  act  at- 
taints a  negro  slave,  alleged  to  be  a  robber,  without  giv- 
ing him  a  day  to  render  himself,  which  I  think  is  not 
reasonable. 

As  to  the  act  for  the  better  strengthening  the  fron- 
tiers, and  discovering  the  approaches  of  an  enemy,  I  have 
no  objection  to  it,  if  your  Lordships  be  of  opinion  the 
quantity  of  land  allowed  to  the  settlement  on  the  fron- 
tiers be  not  too  much. 

And  as  to  the  act  to  prevent  masters  of  ships  or  ves- 
sels runmug  away,  after  the,  embargoes  are  laid,  this 


408  OPINIONS  OF  EMINENT  LAWYERS. 

act  being  to  oblige  all  masters  of  ships,  when  they  make 
their  entries,  to  give  bond  not  to  depart  while  an  em- 
bargo is  laid  in  Virginia,  I  am  of  opinion  it  is  not  fit  to 
be  confirmed  absolutely,  but  for  a  certain  time,  and  till 
Her  Majesty,  her  heirs,  or  successorSj  shall5  in  council, 
order  otherwise,  for  it  may  happen  that  ill  use  may  be 
made,  by  laying  embargoes  there  for  private  ends,  to 

the  prejudice  of  trade. 

EDW.   NORTHEV. 

(21.)  TTie  Solicitor-General  Hanourtis  repo /  fc,  on  t'ic 
acts  of  the  B  rm'>.da  Assemblies,  in  1690-91-93-94. 
To  the  Right   Honorable   the  Lords    Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  I  have  considered  the 
several  acts  passed  at  a  general  assembly  held  in  the 
Bermuda  Islands,  (under  the  government  of  Mr.  Ri- 
chier)  in  1690  and  1691,  viz  :  "an  act  for  vacating  the 
indefinite  acts,  made  at  the  last  session  of  assembly ;" 
."an  act  for  the  s-trict  observation  of  the  Lord's  day, 
commonly  called  Sunday  ;"  "an  act  against  swearing 
and  cursing  ;"  "an  act  against  bastardy  and  incontinen- 
cy  ;"  "an  act  to  prohibit  from  retailing  rum  and  liquors 
publicly,  without  license  of  the  justices  of  the  peace  ;" 
"an  act  against  gaming  ;"  "an  act  for  keeping  a  diligent 
gaurd  at  the  castle  and  Pagitt's  Fort ;"  "an  act  for  keep- 
ing a  good,  look  out  at  the  mount  in  St.  George's  ;"  "an 
act  for  the  speedy  recovery  of  debts  and  damages,  by 
merchants,  strangers,  mariners,  &c. :"  "an  act  for  trying 
any  debt  or  difference,  not  exceeding  twenty  shillings, 
by  the  justices  of  the  peace  ;"  "au  act  for  recovery  of 
from  persons  insolvent  ;"  "an  act  to  prevent  par- 


OP  THE  COLONIAL  CONSTITUTIONS.  409 

ish  charges,  by  poor  persons  removing  from  one  tribe  to 
another  ;"  "an  act  against  buying  and  ingrossing  corn 
and  merchandize  ;"  "an  act  directing  what  warning 
shall  be  given  to  a  tenant  at  will ;"  "an  act  to  prevent 
destruction  of  boundaries  ;"  "an  act  to  prevent  the  de- 
struction of  fish  by  hawling  ;"  "an  act  to  prevent  the  de- 
struction of  Button  Wood  ;"  "an  act  against  removing 
and  taking  away  boats  from  their  mooring  place  ;"  "an 
act  against  deceit  in  making  up  tobacco  ;"  "an  act  for 
putting  out  apprentices,  and  setting  idle,  people  to  work;" 
"an  act  to  prevent  buying,  selling,  or  bartering,  with  ne- 
groes and  other  slaves ;"  "an  act  for  trying  negroes  and 
slaves  ;"  "an  act  for  young  men  to  pay  parish  duties  ;" 
"an  act  for  vessels  paying  powder  money  ;"  "an  act  to 
prevent  stealing  corn,  palmeto  tops,  and  provisions  ;" 
"an  act  for  repairing  the  highways ;"  "an  act  to  pre- 
vent damage  by  cattle,  poultry,  &c.;"  "an  act  for  main- 
taining the  public  bridges  ;"  "an  act  to  prevent  the  de- 
struction and  transporting  of  palmeto  tops  and  brooms;" 
"an  act  for  settling  intestates'  estates  ;"  "an  act  for  pre- 
venting differences  about  dry  goods  imported  into  these 
islands  ;"  "an  act  for  the  liberty  of  the  subject  ;"  "an 
act  about  pleading  ;"  "an  act,  appointing  the  number  of 
the  assembly,  and  the  registering  the  acts  ;"  "an  act  for 
establishing  and  regulating  courts  of  judicature  ;"  "an 
act  for  quieting  men's  estates,  and  preventing  law-suits;" 
"an  act  about  shipping  ;"  "an  act  to  regulate  the  mili- 
tia," And  I  have  likewise  considered  of  the  several 
other  acts,  passed  at  a  general  assembly,  held  in  the 
Bermuda  Islands, (under  the  government  of  Captain  God- 
dard,)  in  1693,  viz :  "an  act  for  the  due  regulation  of 
weights  and  measures  ;"  "an  act  for  the  alteration  and 

amendment  of  several  acts  of  assembly;"  "an  act  for  set- 
53 


410  OPINIONS    OF  EMINENT    LAWYERS. 

tling  a  yearly  revenue  upon  the  ministers  of  these  is- 
lands ;"  "an  act  for  liberty  of  the  subject  (from  illegal 
imprisonment  ;")  "an  act  for  selling  the  governor's  old 
house,  and  erecting  of  a  new  house,  fitted  for  the  enter- 
tainment and  accommodation  of  the  present  and  suc- 
ceeding governors  ;"  "an  act  to  prevent  false  alarms  ;" 
"an  act  to  prevent  the  destruction  of  young  cedars;"  "an 
act  to  prohibit  any  from  retailing  rum  and  liquors  pub- 
Kcly,  without  license  of  the  justices  of  the  peace  ;"  "an 
act  to  prevent  the  destruction  of  fish,  by  hawling  ;"  "an 
act  for  raising  a  public  revenue,  for  the  support  of  these 
their  Majesty's  islands ;"  "an  additional  act,  for  raising 
a  public  revenue  for  the  support  of  the  government  of 
these  their  Majesty's  islands." 

And  I  have  likewise  considered  of  the  several  other 
acts,  passed  at  a  general  assembly,  held  in  the  Bermuda 
islands,  (under  the  government  of  Captain  Goddard,)  in 
1694,  viz  :  "an  act  for  settling  the  Governor's,  and  all 
his  officers'  fees ;"  "an  act  for  limiting  the  time  when 
appeals  shall  be  prosecuted,  that  are  claimed  from  the 
courts  of  common  law,  to  the  Governors  and  council  of 
Bermuda ;"  an  act,  laying  an  imposition  on  all  Jews, 
and  reputed  Jews,  trading  OF  merchandizing  in  these 
islands  :"  "an  act  for  the  continuance  of  an  act,  entitled, 
an  act  for  raising  a  public  revenue  for  the  support  of  the 
government  of  these  their  Majesty's  islands  ;''  "and  one 
other  act,  entitled,  "an  additional  act,,  for  raising  a  pub- 
lic revenue  for  the  support  of  the  government  of  these 
their  Majesty's  islands,  for  one  year  longer  after  the  ex- 
piration thereof." 

As  to  such  of  the  said  laws  as  are  hereinafter  particu- 
larly mentioned,  I  humbly  lay  before  your  Lordships 
my  opinion  thereupn,  viz :  "an  act  to  prohibit  from  re- 


OP  THE  COLONIAL  CONSTITUTIONS. 

tailing  rum  and  liquors,  publicly,  without  license  of  the 
justices  of  the  peace." 

This  act  is,  by  a  particular  proviso  therein,  to  continue 
for  two  years  from  the  publication  thereof,  and,  I  pre- 
sume, was  intended  to  commence  at  twenty  days'  end 
after  the  publication,  but,  by  mistake  in  penning,  the  act 
commences  immediately  and  lasts  no  longer  than  twenty 
days. 

"  For  keeping  a  diligent  guard  at  the  castle,  and 
Pagitt's  Fort." 

In  the  clause,  for  the  further  encouragement  of  the 
watch  and  guard,  by  distributing  the  fourscore  ears  of 
corn,  there  is  an  omission  of  a  line  or  two,  which  makes 
that  clause  nonsense.  In  the  same  act,  No.  B,  the  clause 
is  right. 

"An  act  for  trying  any  debt  or  difference,  not  ex- 
ceeding twenty  shillings,  by  the  justices  of  the  peace." 

By  this  law,  the  justice  is  enabled  to  allow  what  he 
pleases  to  be  evidence,  whereas  he  ought  not  to  deter- 
mine but  by  legal  proof. 

This  act  also  provides,  that  after  judgment  shall  be 
awarded  by  the  justice  of  the  peace,  if  satisfaction  shall 
not  be  made  within  ten  days,  the  justice  is  to  grant  his 
warrant  to  levy  the  debt  and  charges  by  distress  and 
sale  of  the  party's  goods,  and  for  want  of  such  distress, 
the  justices  are  empowered  to  hire  out  to  service  the 
defendant,  till  the  debt  and  charges  shall  be  satisfied  ; 
but  there  is  110  rule  to  determine  when  the  debt  is  sat- 
isfied, or  by  what  means  the  party  shall  again  obtain 
his  liberty. 

This  is  not  agreeable  to  any  execution  which  can  be 
awarded  according  to  the  law  of  England :  it  gives  an 
arbitrary  power  to  the  justice,  to  make  any  defendant, 


412  OPINIONS  OF  EMINENT  LAWYERS. 

from  whom  such  debt  shall  be  owing,  a  servant,  if  not  a 
slave,  to  whomsoever,  and  wheresoever,  he  thinks  fit  : 
for  these  reasons,  I  think  this  act  not  fit  to  be  con- 
firmed. 

"An  act  for  recovery  of  debts  from  persons  insoU 
vent."  "i>* 

By  this  act,  every  person,  of  what  quality  soever,  as 
well  strangers  as  inhabitants,  within  the  island,  who 
shall  be  in  prison  for  debt,  and  shall  not  pay  the  same 
within  ten  days  after  such  publication  as  is  mentioned 
in  the  act,  is  to  be  hired  forth  to  any  person,  in  any 
place,  and  upon  any  employment,  as  the  Governor  and 
council  shall  order,  for  satisfaction  of  the  said  debt,  but 
no  rule  is  laid  down  to  ascertain  the  rate  or  price  for 
which  such  person  is  to  serve,  nor  when  the  debt  is  to 
be  satisfied,  nor  how  the  debtor  shall  be  discharged 
from  his  service.  Persons  of  very  good  ability,  (especiaU 
ly  strangers,)  through  misfortunes  or  accidents,  may  be 
in  prison  for  debt,  and  unable  to  pay  the  same  within 
ten  days  ,  yet  such  persons  are-equally  liable  as  persons 
really  insolvent,  to  become  servants,  to  work  out  their 
debts. 

Though  persons  insolvent,  only,  are  mentioned  in  the 
title  of  the  act,  yet  this  law  extends  to  all  persons 
whomsoever,  and  to  all  debts,  without  any  distinction  : 
I  think  this  act  not  fit  to  be  confirmed. 

"An,  act  for  putting  out  apprentices,  and  setting  idle 
people  to  work." 

This  act  directs  such  as  are  of  the  age  of  fifteen  years, 
and  living  idly,  and  not  having  wherewithal  to  main- 
tain themselves,  to  be  forced  to  work  or  go  to  service,  as 
is  required  by  the  statutes  made  7  Jac.  I.  cap.  25,  and  28 
and  there  are  not  any  such  statutes  ;  but  this  act  refers 


OF  THE  COLONIAL  CONSTITUTIONS.         413 

also  to  several  other  laws,  which  may  be  of  great   use, 
and  therefore  may,  without  prejudice,  be  confirmed. 

"An  act  for  settling  intestates  estates." 

This  act  in  No.  A,  is  right,  referring  to  the  act  made 
in  the  22  and  23  of  Car.  II.  chap.  10  ;  but  in  No.  B, 
there,  is  a  mistake  in  the  chapter  it  refers  to,  it  men- 
tioning the  llth,  instead  of  the  10th. 

"An  act  for  the  liberty  of  the  subject." 

The  statutes  of  Hen.  III.  and  Edw.  III.  referred  to 
in  this  law,  are  unnecessary  to  be  enacted  within  these 
islands,  being  declaratory  of  the  common  law  of  Eng- 
land. If  the  16th  Car.  I.  should  be  there  in  force,  the 
jurisdiction  and  authority  of  the  Queen  in  council,  in 
making  any  determination  concerning  any  lands,  tene= 
ments,  goods,  or  chattels,  on  appeal  or  otherwise,  is 
wholly  laid  aside, 

This  law  likewise  enacts,  that  all  laws  in  force  in 
England,  relating  to  liberty  and  property,  shall  be  also 
in  force  within  those  islands,  which  I  conceive  to  be 
very  improper,  and  ought  by  no  means  to  be  approved  of. 

"An  act  for  quieting  men's  estates,  and  preventing 
law-suits." 

A  statute  of  limitation  is  undoubtedly,  at  least  as  nec- 
essary in  these  islands  as  in  England ;  but  this  act  is 
so  very  imperfectly  drawn,  that  it  will  rather  destroy 
men's  undoubted  rights  than  quiet  them,  arid  create  law- 
suits than  prevent  them. 

An  actual  enjoyment,  for  twenty  years  before  the  ma- 
king this  law,  without  any  claim,  rent,  service,  or  ac- 
knowledgment, and  five  years  continued  enjoyment  af- 
terwards, or  the  like  enjoyment  for  twenty  years  at  any 
time  after  the  making  the  act,  is  turned  into  an  absolute 
estate  of  inheritance, 


414  OPINIONS    OF  EMINENT  LAWYERS. 

As  to  the  limitation  of  five  years  after  the  making  the 
act,  I  conceive  that  time  to  be  short,  and  persons  who 
had  a  right  of  entry  might  be  surprised  thereby  ;  and  as 
this  act  is  penned,  persons  who  have  an  undoubted  title 
in  reversion  or  remainder,  may  be  barred  thereof,  by  the 
possession  of  the  tenant,  for  years,  during  whose  posses- 
sion, they  in  reversion  or  remainder,  cannot,  by  law, 
make  any  entry  or  claim. 

The  provision  in  this  act  onght  to  have  been  agreea- 
ble to  the  statute  of  limitations,  made  in  the  twenty- 
first  year  of  King  James  I.,  whereby  persons  having  any 
right  or  title,  are  obliged  to  enter  within  a  certain  num- 
ber of  years  after  such  right  and  title  of  entry  accrued 
to  them,  or,  in  default  thereof,  are  debarred, 

For  the  imperfect  drawing  of  this  act,  and  the  ill  con- 
sequences that  may  arise  thereby,  I  conceive  it  ought 
to  be  rejected. 

^An  act  for  the  alteration  and  amendment  of  several 
acts  of  assembly." 

Part  of  this  act  varies  part  of  the  act  before  mention- 
ed, for  trying  any  debt  or  difference,  not  exceeding 
twenty  shillings,  by  the  justices,  but  leaves  it  liable  to 
the  objection  before  made  to  it  ;  and,  therefore,  I  think 
this  act  not  fit  to  be  confirmed,  though  I  have  no  objec- 
tion to  the  residue  of  the  act. 

'•'An  act  for  liberty  of  the  subject  from  illegal  impris- 
onment." 

This  act  gives  the  entire  benefit  of  the  habeas  corpus 
act,  made  in  the  31st  King  Charles  II.  to  the  inhabi- 
tants of  this  island. 

They  have  all  the  benefits  of  the  writ  of  habeas  cor- 
pus, which  the  common  law  of  England  gives  against  il- 
legal imprisonments.  It  must  be  submitted  to  your 


OF  THE  COLONIAL  CONSTITUTIONS.        415 

Lordships,  whether  such  an  act,  in  those  parts,  will  not 
lessen  the  dependence  upon  the  Crown.  If  such  a  law 
should  not  be  thought  improper  there,  yet  the  granting 
a  halects  corpus  ought  not  to  be  in  the  power  of  every 
justice  of  the  peace. 

"An  act  to  prohibit  any  from  retailing  rum  and  li- 
quors, publicly,  without  license  of  the  justice  of  peace." 

The  same  mistake  is  in  this  act>  as  in  tl;e  act  with  the 
same  title,  made  in  the  general  assembly,-  held  in  1690-1; 
however,  this  act  also  is  long  since  determined,  accord- 
ing to  their  intentions. 

As  to  the  residue  of  the  several  acts,  concerning 
which  I  have  made  no  particular  remark,  your  Lord- 
ships will  observe  that  very  many  of  them  were  but  tem- 
porary, and  are  determined  several  years  since,  and  few 
of  them  drawn  so  carefully  as  they  ought  to  be  ;  and  in 
many  of  them  there  seem  to  be  mistakes  in  trafiscrib- 
ing  :  however,  I  have  no  such  objection,  in  point  of 
law,  as  to  advise  the  rejecting  of  them. 

SIM.  HARCOURT, 
Dec.  6,  1703. 

To  the   Right  Honorable  the  Lords  Commissioners   of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  I  have  considered  the 
several  acts,  passed  at  a  general  assembly,  held  in  the 
Bermuda  Islands,  (under  the  government  of  Mr.  Richier,) 
in  1690-1,  viz  :  "an  act  for  vacating  the  indefinite  acts,, 
made  in  the  last  general  assembly  ;"  "an  act  for  the 
strict  observation  of  the  Lord's  day,  commonly  called 
Sunday ;"  "an  act  against  swearing  and  cursing  ;"  "an 


416  OPINIONS    OF     EMINENT     LAWYERS. 

act  against  bastardy  and  incoritineiicy ;"  "  an  act 
against  gaming  ;"  "an  act  for  the  keeping  a  diligent 
watch  and  guard,  at  the  castle,  and  Pagitt's  Fort ;"  "an 
act  for  keeping  a  good  look  out  at  the  mount  in  St. 
George's  ;"  "an  act  for  the  establishing  and  regulating 
the  courts  of  judicature  ;"  "an  act  for  the  more  speedy 
recovery  of  debts  and  damages,  by  merchants,  strangers, 
mariners,  &c,;"  "an  act  for  trying  any  debt  or  differ- 
ence, not  exceeding  twenty  shillings,  by  the  justice  of 
the  peace  ;"  "an  act  for  the  recovery  of  debts,  from  per- 
sons insolvent  ;"  "an  act  preventing  mischiefs  by  dogs;" 
"an  act  to  prevent  parish  charges,  by  poor  persons  re- 
moving from  one  tribe  to  another  ;"  "an  act  against 
buying  and  ingrossing  corn  and  merchandize  ;"  "an  act, 
directing  what  warning  is  to  be  given  to  a  tenant  at 
will ;"  "an  act  to  prevent  destruction  in  boundaries  ;" 
"an  act  to  prevent  destruction  of  Button  Wood  ;"  "an 
act  against  the  removing  and  taking  away  boats  from 
their  mooring  places  ;"  "an  act  against  deceit  in  making 
up  tobacco  ;"  "an  act  for  putting  out  apprentices,  and 
setting  idle  persons  to  work  ;"  "an  act  to  prevent  buy- 
ing, selling,  or  bartering,  with  negroes,  and  other 
slaves;"  "an  act  for  trying  negroes  and  slaves  ;"  "an  act 
for  young  men  to  pay  parish  duties  ;"  "an  act  for  ves- 
sels paying  powder  money  ;"  "an  act  to  prevent  steal- 
ing corn,  palmeto  tops,  and  provisions  ;"  "an  act  for  re- 
pairing the  highways  ;"  an  act  to  prevent  damage,  by 
cattle,  poultrv,  &c.;"  "an  act  for  maintaining  the  public 
bridges  ;"  "an  act  to  prevent  the  destruction  and  trans- 
portation of  palmeto  tops  and- brooms  ;"  "an  act  for  set- 
tling intestates  estates  ;"  "an  act  for  preventing  differ- 
ences about  dry  goods,  imported  into  these  islands;"  "an 
act  for  the  liberty  of  the  subject  ;"  "an  act  about  plead- 


OP  THE  COLONIAL  CONSTITUTIONS.         417 

ing  5"  "an  act,  appointing  the  number  of  the  assembly, 
and  registering  the  acts  ;"  "an  act  for  regulating  the 
militia  ;"  "an  act  for  liberty  of  vessels  going  out,  and 
coming  into,  these  islands  ;"  "an  act  for  quieting  men's 
estates,  and  preventing  law-suits  :"  all  which  laws  are 
contained  in  the  book  of  laws,  under  seal,  &c.  mark- 
ed B. 

I  apprehend  the  said  laws  to   be   a  duplicate  of  the 

laws  contained  in  the  book  of  laws  marked  A,  which 
passed  in  the  years  1690j  and  1691,  excepting  only,  that 
each  of  the  said  books  contains  a  law  or  twOj  which  are 
not  contained  in  the  other  ;  and,  by  comparing  the  acts 
it  will  appear,  that  in  very  many  places  there  is  some 
difference  in  the  expression,  or  some  few  words  omitted 
or  transposed,  which  may,  perhaps,  have  proceeded  from 
a  negligent  transcribing  them  from  the  record. 

As  for  such  of  the  acts  above  mentioned,  which  have 
the  same  title  with  those  of  the  book  marked  A,  against 
which  I  have  made  any  objection  in  my  report  to  your 
Lordships  thereupon,  are  liable  to  the  same  objection, 
the  acts  being  either  verbatim  the  same,  or  containing  no 
material  variance. 

SIM.  HARCOURT; 

Dec.  6,  1703. 

(22.)  The  same  la/wyer's  report  on  the  acts  of  the  same 
Assembly,  1698. 
To   the   Right  Honorable   the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships. 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  I  have  considered  the 
several  acts  passed  at  a  general  assembly  at  Bermuda, 
under  the  government  of  Samuel  Day  Esq.  the  31st  of 
October,  1698, 


418  OPINIONS  OF  EMINENT  LAWYERS. 

1.  An  act  for  the  restraining  and  punishing  privateers 
and  pirates. 

2.  An  act  to  prevent  stealing  of  oranges  and  other 
fruits. 

3.  Additions  and  alterations  to  the  act,  entitled  "  an 
act  for  repairing  the  highways/' 

4.  An  addition  to  the  act  for  the   trying  of  negroes 
in  criminal  causes. 

5.  An  act  for  addition  and  amendment  to  an  act,  en- 
titled "an  act  to  prevent   the   destruction  and  transpor- 
tation of  palineto  tops,  and  brooms." 

The  act  for  restraining  and  punishing  privateers  and 
pirates,  as  penned,  seems  liable  to  several  objections. 

By  the  first  enacting  clause  it  is  made  felony,  with- 
out benefit  of  clergy,  for  any  person  who  then  did,  or 
within  four  years  then  pastr  had,,  or  at  any  time  after- 
wards, should  inhabit  or  belong  to  this  island,  to  serve 
in  America,  in  a  hostile  manner,  under  any  foreign 
prince,  state,  or  potentate,  against  any  other  sovereign, 
prince,  state,  or  potentate^  in  amity  with  the  King  of 
England,  without  license  from  the  Governor. 

There  is  a  proviso  that  this  clause  should  not  extend 
to  any  person  then  in  service  to  any  foreign  state  or 
potentate,  who  should  quit  such  service  by  the  4th  of 
August  then  following. 

As  this  part  of  the  law  is  framed,,  persons  not  guilty 
of  any  crime  whatsoever  may  be  liable  to  suffer  death  : 
they  may  enter  into  the  service  of  any  foreign  prince, 
state,  or  potentate,  who  are  not  in  hostility  with  any  of 
the  allies  of  England,  and  if  afterwards  war  should 
break  forth  between  such  foreign  prince,  state,  or  poten- 
tate, into  whose  service  they  entered,  without  being 
guilty  of  any  crime,  with  any  other  sovereign,  prince, 


OP  THE  COLONIAL    CONSTITUTIONS.  419 

state,  or  potentate,  in  alliance  with  England,  though 
they  are  forced  to  continue  in  the  service,  and  should 
quit  the  same  so  soon  as  they  have  an  opportunity  so  to 
do,  and  return  home,  and  submit  themselves  to  the  Gov- 
ernor, yet  are  they  guilty  of  felony,  without  benefit  of 
clergy,  for  such  their  involuntary  continuing  in  the  ser- 
vice, after  the  hostility  begun. 

By  the  next  clause  in  the  act,  all  treasons,  felonies,  pi- 
racies, robberies,  murders,  or  conspiracies,  committed, 
or  to  be  committed,  upon  the  sea,  or  in  any  haven, 
creek,  or  bay,  where  the  admiral  hath  any  jurisdiction, 
may  be  inquired,  tried,  and  judged  within  the  island, 
as  if  such  offence  had  been  committed  within  the  island, 
and  for  that  purpose  a  special  commission  is  to  issue, 
and  such  proceedings  thereupon  to  be  had,  as  by  the 
statute  for  pirates,  28th  Henry  VIII.  is  appointed. 

By  this  part  of  the  act,  there  is  as  large  a  jurisdiction 
given  to  try  all  high  treasons,  piracies,  murders,  and  oth- 
er offences  committed  upon  the  high  seas,  as  is  given 
by  the  said  statute  of  Henry  VIII.  to  commissioners  to 
be  appointed  under  the  great  seal  of  England,  for  trying 
any  of  the  said  offences  in  England. 

The  said  offences,  by  virtue  of  this  act,  to  be  tried  by 
special  commission  within  the  island,  are  not  confined  to 
offences  committed  within  any  particular  limits,  but  in 
what  part  of  the  world  soever,  upon  the  sea  where  the 
admiral  hath  jurisdiction,  any  treason,  piracy,  felony, 
robbery,  murder,  or  conspiracy  shall  be  committed,  or 
supposed  to  be  committed,  any  person  may  be  taken, 
and  carried  prisoner  to  the  Bermuda  islands,  and  there 
tried  and  executed  for  the  same. 

By  another  clause  in  the  act,  every  person  who  shall 
knowingly  entertain,  harbor,  conceal,  trade,  or  hold  cor- 


420  OPINIONS  OF  EMINENT  LAWYERS. 

respondence  with  any  person  deemed  to  be  a  pirate,  or 
other  offender  within  the  construction  of  this  act,  and 
not  endeavor  to  apprehend  such  offender,  shall  be  prose- 
cuted as  an  accessory,  and  suffer  the  like  pains  and 
penalties. 

A  person  may  knowingly  trade  with  a  man  that  is  a. 
pirate  or  other  offender  within  the  act,  not  knowing 
him  to  be  a  pirate  or  such  offender. 

This  clause,  as  penned,  may  subject  very  innocent- 
persons  to  be  prosecuted  for  their  lives,  for  trading  or 
corresponding  with  persons  they  neither  know,  nor  sus-r 
pect,  to  be  pirates  or  offenders. 

For  these  reasons,  (however  necessary  some  law  of 
this  kind  may  be  within  these  islands,}  I  humbly  con^ 
ceive  this  law  not  fit  to  be  approved. 

As  to  the  other  four  acts,  I  have  no  objection  to  eith- 
er of  them  in  point  of  law. 

SIM.  HARCOURT. 

July  28,  1704. 

(23.)  1  he  same  lawyer's  report  on  the  acts  of  tlie  same 
Assembly,  in  1704. 
To  the   Right  Honorable,  the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  I  have  considered  the 
several  acts  passed  at  a  general  assembly  of  Bermuda 
(under  the  government  of  Benjamin  Bennett  Esq.)  the 
3d,  6th.  and  27th  of  July,  1701,  viz  : 

1.  An  act  for  an  imposition  on  liquors  and  sugars  im- 
ported and  landed  in  these  islands. 

2.  An  act  to  prevent  the  oppression  and  extortion  of 
officers. 


OP  THE  COLONIAL  CONSTITUTIONS.  421 

3.  An   act   laying   an   imposition   on   liquors,    &c. 

4.  An   act  for  establishing  fast  days,  to  be  celebrated 
in  these  islands  in  an  anniversary  course. 

5.  An  act  for  the  speedy  reparation   of  the  castle, 
forts,  and  platforms  belonging  to  these   islands,  and  for 
building  barracks   with  chimnies    to    each  fort,  where 
needful ;  and  for  raising  a  present  supply  of  monies  for 
that  end. 

6.  An  act  to  prevent  the  evading  of  payment  of  just 
debts,  and  satisfaction  of  damages, 

And  I  humbly  observe  to  your  Lordships,  that  the  act 
for  imposition  on  liquors,  &c.  expired  on  the  3d  of  July, 
1703,  notwithstanding  which,  the  fact  recited  in  the 
preamble  of  this  act  may  deserve  your  Lordships'  con-- 
sideration. 

It  is  recited  that  an  imposition  had  been  laid  on  li- 
quors, to  continue  for  two  years  only,  at  a  former  ses- 
sions of  assembly,  held  under  the  government  of  Samuel 
Day  Esq.,  but  that,  by  the  clerk's  neglect,  a  whole  para- 
graph in  that  act,  which  is  recited  to  be  temporary,  was 
entered  on  record  as  a  perpetual  law,  and  that  the  late 
Governor,  Mr.  Day,  had  extorted  several  sums  of  money 
after  the  determination  of  that  act,  as  if  the  act  had 
had  continuance,  and  had  transmitted  it  to  his  late 
Majesty  as  a  perpetual  law  to  be  confirmed. 

It  is  further  recited,  that  Mr.  Bennett,  the  present 
Governor,  upon  a  representation  thereof  by  the  assent 
bly,  had  assured  them  to  represent  the  same  to  his  late 
Majesty,  and  that  the  collection  of  the  rates,  imposed  by 
that  act,  should  cease  till  his  Majesty's  pleasure  was 
known. 

Whether  that  act,  entered  upon  record  amongst  the 
acts  of  the  assembly  of  the  island  as  a  perpetual  law, 


422  OPINIONS    OF    EMINENT    LAWYERS. 

and  transmitted  as  such  by  the  former  Governor  to  be 
confirmed,  be  yet  confirmed  or  not,  does  not  appear 
to  me. 

But  it  appears  from  this  recital,  that  the  present  Gov- 
ernor, by  his  own  authority,  at  the  request  of  the  assem- 
bly, has  stopped  the  further  collection  of  the  rates  im- 
posed by  the  act,  passed  under  the  government  of  Mr. 
Day,  upon  the  allegations  recited  in  this  act. 

The  act  to  prevent  the  oppression  and  extortion  of  of- 
ficers, passed  the  6th  of  July  1701,  appears  to  be  re- 
pealed the  14th  of  November  1702,  otherwise  the  said 
act  is  liable  to  objections. 

As  to  the  four  other  acts,  I  have  no  objection  to  eith- 
er of  them  in  point  of  law. 

SIM.  HARCOURT. 

July  28,  1704. 

(24.)  Mr.  West's  objections  to  an  act  of  the  same  As- 
setnbly,  as  it  imposed  a  duty  on  the  importation  of  Brit- 
ish manufactures. 
To  the  Right  Honorable  the  Lords  Commissioners   of 

Trade  and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  in  a  letter  dated  the  5th  of  this 
instant,  February,  I  have  perused  and  considered  an  act 
of  assembly,  passed  in  the  Bermuda  islands,  entitled  "an 
to  supply  the  deficiency  of  several  funds  in  these  islands, 
for  finishing  and  completing  a  house  for  the  present  and 
succeeding  Governors,  and  repairing  the  castle  and  oth- 
er fortifications,  and  for  defraying  the  other  public 
charges  of  these  islands." 

The  act  recites,  that  an  act  had  been  passed,  anno 
1713,  by  which  a  duty  of  31.  per  cent,  was  laid  upon  all 


OP  THE  COLONIAL  CONSTITUTIONS.  423 

goods  imported  into  those  islands,  to  be  applied  for  the 
purposes  in  that  act  mentioned 5  which  act  was  to  con- 
tinue for  the  term  of  two  years  only.  It  also  recites, 
that  by  another  act,  passed  anno  1715,  the  former  duty 
was  continued  for  the  term  of  seven  years,  and  an  ad- 
ditional duty  of  21.  per  cent,  more  was  laid  to  continue 
for  the  same  term, 

As  to  the  present  act,  though  I  cannot  say  there  is 
any  great  objection  to  it  directly,  in  point  of  law  ;  yet, 
I  think,  I  ought  to  observe  to  your  Lordships,  that  the 
purport  of  the  present  act  is  to  continue  the  last  men- 
tioned increased  duty  of  51.  per  cent,  for  no  less  a  term 
than  one  and  twenty  years  longer  ;  and  as  a  duty  of  this 
nature  must  chiefly ^  as  I  apprehend,  affect  the  importa- 
tion of  British  goods  into  those  islands 5  I  submit  to  your 
Lordships  how  far  this  act  is  consistent  with  the  Gover- 
nor's instructions,  more  especially  when  it  is  considered 
that  the  duty  is  not  to  continue,  as  formerly,  for  two  or 

seven,  but  for  one  and  twenty  years. 

RICH.  WEST. 
February  13,  1721. 

(25.)  The  objections  of  the  same  lawyer,  to  similar 
laws  of  the  same  Assembly. 
To  the  Right  Hon,   the  Lords  Commissioners  of  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  an  act,  passed  at  Bermuda,  alias 
Somer  islands,  in  America,  in  1723,  entitled  "an  act  to 
supply  the  deficiency  of  the  several  funds  in  these  is- 
lands, and  for  the  immediate  support  of  the  government, 
and  for  the  repairing  the  fortifications :"  by  which  act 
it  is  proposed  to  raise,  as  I  am  informed,  a  sum  not  much 


424  OPINIONS  OF  EMINENT  LAWYERS. 

exceeding  one  thousand  pounds  per  annum?  and  to  that 
end  a  duty  is  laid  upon  all  goods  imported  into  those 
islands,  which  is  represented  unto  me  by  those  who 
have  attended  on  the  behalf  and  in  maintenance  of  this 
act,  as  the  only  fund  by  which  the  inhabitants  are  able 
to  provide  for  the  support  of  the  government ;  and  if 
that  be  fact,  I  can  have  no  objection  to  the  laying  a  duty 
in  general ;  but  I  must  observe  to  your  Lordships,  that 
there  is  a  distinction  made  between  the  inhabitants  of 
the  island  and  strangers,  the  inhabitants  being  to  pay  af- 
ter the  rate  of  forty  shillings  per  cent,  and  strangers  af- 
ter the  rate  of  four  pounds  per  cent. 

In  relation  to  which  distinction,  it  has  been  repre- 
sented to  me  as  a  reason  for  it,  that  the  inhabitants  are 
obliged  very  often,  upon  any  intelligence  of  pirates,  to 
be  three  or  four  days  under  arms  at  once,  and  very  often 
obliged  to  fit  out  after  them  to  sea,  all  which  is  a  very 
great  expense  to  them,  and  which  strangers  are  not  lia- 
ble to. 

If  your  Lordships  are  of  opinion,  that  this  considera- 
tion is  sufficient  to  balance  the  above-mentioned  differ- 
ence in  the  tax,  I  have  no  objection  to  this  act  being 
passed  into  law. 

I  have  also  perused  and  considered  the  several  other 
acts  passed  in  the  same  island,  entitled  "an  act  for  the 
better  security  of  all  such  as  are  lawfully  possessed  of 
any  negroes  or  other  slaves  in  these  islands,  whereby  to 
secure  their  lawful  rights,  interest,  and  property  of  and 
to  the  same  ;"  "an  act  for  prolonging  and  making  some 
alterations  in  an  act,  entitled  an  act  for  the  attaching 
the  goods  or  effects  of  any  persons,  inhabitants,  or  oth- 
ers, not  residing  in  these  islands  j"  a  second  additional 
clause  to  an  act,  entitled,  "an  act  for  vessels  paying 


OP  THE  COLONIAL  CONSTITUTIONS.         425 

powder  money.  };  To  which  (if  the  act  to  which  they  re- 
fer have  been  confirmed  by  his  Majesty)  I  have  no  ob- 
jection to  their  being  passed  into  law, 

RICH.  WEST. 
March  28,  1724. 


(20.)  Mr.  LamV'S  observations  on  an  act  of  the  Caro- 
U>.a  Assembly,  relative  to  coin*. 

To  the  Right  Honorable  ilic  Lords  Commissioners  for 

Ci' 

Trade  and  Plantations, 

Mav  it  please  your  Lordships  ; 

I  received  your  Lordships'  commands,  signified  to 
me  by  Mr.  Hill's  letter  of  the  9th  instant,  wherein  youjare 
pleased  to  desire  my  opinion  upon  the  following  act 
passed  in  South  Carolina,  in  June  1746,  viz  :  "an  act 
for  stamping,  emitting,  and  making  current  the  sum  of 
£210,000  in  paper  bills  of  credit,  and  for  ascertaining 
and  preserving  the  Hi  tare  value  thereof,  to  be  lent  out 
at  interest  on  good  security  at  eight  per  cent,  per  an- 
num, and  for  applying  the  said  interest  to  the  purposes 
thereinafter  mentioned,  and  for  exchanging  the  paper 
bills  of  credit  in  this  province^  and  making  them  less 
subject  to  be  counterfeited." 

Upon  this  act  I  made  a  report  to  your  Lordships  in 
July  1747.  and  tlic  several  steps  that  had  been  taken  in 
relation  to  this  act,  prevented  my  making,  at  that  time, 
any  further  observations  than  are  contained  in  the  said 
report  ;  but  ftfl  your  Lordships  are  pleased  to  desire  my 
further  opinion  upon  this  act,  I  must  observe,  that  this 
act  is  drawn  and  worded  in  so  loose  and  incorrect  a 
manner,  that  it  is  with  difficulty  to  be  understood  what 
is  meant  and  intended  by  it}  or  how  it  would  properly' 
be  carried  into  execution.  What  I  take  it  to  be  the  in- 


426  OPINIONS  OF  EMINENT  LAWYERS. 

tent  of  the  act  I  shall  here  mention,  and  then  observe 
the  difficulties  that  attend  the  executing  of  it. 

It  appears  to  me  that  this  province  is  at  present  indebted 
to  several  persons,  upon  bills  formerly  emitted,  the  sum 
of £100, ODD,  for  which  there  is  no  security  or  fund  for 
the  payment,  and  that  by  this  act  a  fund  is  intended  to 
be  provided  for  the  paying  them  off,  and  for  creating  an 
additional  currency  of  £110,000.  By  this  act  £210.000 
new  bills  are  to  be  emitted,  cut  of  which,  bills,  to  the 
amount  of  £100, 000  are  to  be  issued^ to  exchange  the 
said  old  bills  of  the  same  value,  and  the  remaining 
£110,000  is  to  be  lent  out  on  securities  at  eight  per  cent, 
interest,  five-eighths  of  which  interest  is  to  be  the  fund 
to  pay  off  the  old  debt  of  £100,000  and  when  the  debt  is 
discharged,  then  the  borrowers  of  the  £110,000  are  to 
begin,  from  that  time,  to  pay  off  their  principal  money, 
one-tenth  part  yearly,  together  with  the  interest  for  ten 
years,  till  the  whole  is  discharged, -and  the  bills  taken 
up.  The  interest  money  is  to  be  paid  in  silver  or  gold, 
at  the  rates  mentioned  in  the  said  act. 

As  to  the  expediency  or  utility  of  this  act,  that  is  a 
matter  under  your  Lordships'  consideration  ;  what  I 
have  to  observe  is,  if  it  shall  be  thought  expedient  that 
such  an  act  should  pass,  that  this  act  will  be  very  de- 
fective, and  liable  to  be  evaded. 

It  is  enacted,  "that  the  trustees  shall  exchange  £100,- 
000  of  new  bills  for  the  present  paper  bills,  that  all  the 
bills  of  credit  of  this  province  may,  as  soon  as  conven- 
iently they  can,  be  brought  and  put  upon  one  and  the 
same  foundation." 

In  this  clause  there  is  no  limited  time  for  exchanging 
the  new  bills  for  the  old,  nor  any  directions  for  the  burn- 
ing and  cancelling  the  old  bills  when  they  are  taken  up, 


OF  THE  COLONIAL,  CONSTITUTIONS.  427 

which  is  usual  in  these  cases,  and  was  particular!}^  pro- 
vided for  in  the  act  passed  in  this  province  the  20th  of 
August,  1731,  for  the  emitting  of  new  bills  in  exchange 
of  old  bills. 

It  is  also  enacted  "That  five-eighth  parts  of  the  silver 
and  gold  which  shall  be  paid  as  interest  into  the  hands 
of  the  trustees,  shall  by  them  be  annually  put  out  on 
interest,  at  the  rates  or  value  aforesaid,  until  the  whole 
principal  out  on  bonds,  secured  as  aforesaid,  shall  amount 
unto  the  sum  of  £210,000  at  which  time  (as  it  is  therein 
mentioned)  the  said  debt  of  £100,000  will  be  entirely 
paid  off  and  discharged." 

Then  follows  the  direction  about  the  application  of 
the  interest,  over  and  above  the  five-eighths,  which  is 
very  imperfectly  worded. 

It  is  also  enacted,  "That  in  order  to  sink  the  said  bills 
of  credit,  so  let  out  at  interest,  that  the  repayment  of 
the  principal  shall  commence  at  the  time  aforesaid  of  the 
old  debt  being  paid  off  and  discharged  ;.  and  thencefor- 
ward, annually,  the  obliger  or  borrower  shall,  over  and 
besides  the  interest  clue  on  his  or  their  bonds  respect- 
ively, pay  to  the  said  trustees  one- tenth  part  of  the  prin- 
cipal, and  such  payments  yearly,  and  every  year  to  be 
made,  so  that  the  whole  principal  be  fully  paid  and  dis- 
charged in  the  space  of  ten  years,  aud  the  sums,  so  re- 
ceived, in  discharge  of  the  principal  aforesaid,  shall  be 
annually  burnt  by  the  trustees. 

By  these  clause's  there  is  no  time  fixed,  nor  is  there 
any  compulsion  upon  the  trustees  to  apply  the  interest 
money  they  shall  receive  to  discharge  the  old  debt  of 
£100,000  (which  is  the  fund  for  that  purpose)  and  to 
take  up  and  cancel  the  bills,  as  they  are  paid  off,  which 
should  be  provided  for,  otherwise  they  will  have  it  too 


428  OPINIONS  OF  EMINENT  LAWYERS. 

much  in  their  power  to  evade  the  intention  of  this  act, 
by  continuing  a  larger  currency  than  even  by  this  act 
(loosely  worded  as  it  is)  seems  to  be  intended.  Where- 
as, if  it  was  enacted  that  the  trustees  should  annually 
pay  the  five  eighths  of  the  interest  as  they  received  it7 
towards  paying  off  and  calling  in  the  bills  for  the  old 
debt,  until  the  whole  of  the  old  debt  is  discharged,  and 
the  bills  are  cancelled,,  or  to  place  out  the  interest  an- 
nually on  securities  ([for  which  this  act  does  not  give 
proper  directions)  till  the  accumulated  sums  make  up 
£100rOOO  and  tbe»  be  obliged  to-  discharge  all  the  bills 
for  the  old  deMr  and  taketbe-mop  and  cancel  them,  and 
from  that  time  the  borrowers  of  the  £110,000  which 
will  be  the  only  bills  remaining,  to  begin  to  pay  annual- 
ly one-tenth  part  of  their  debt  and  interest,  till  all  their 
bills  are  paid  and  cancelled  ;  this  wouldr  in  a  course  of 
years,  sink  all  the  bills. 

It  is  also  enacted,  "That  the  interest  money  shall  be 
paid  in  Spanish  or  English  silver  coin,  or  in  gold,  at  the 
rates  therein  mentioned.." 

By  the  act  of  Queen  Anne,  the  rates  of  foreign  coins 
in  the  colonies  and  plantations  are  ascertained  ;  and 
this  province  cannot  alter  the  same,  but  by  a  new  law 
made  for  that  purpose.  This  is  designed  to  be  a  new 
law,  and  includes  English  silver  coin,  therefore  it  must 
be  submitted  to  your  Lorcf'ships  how  to  advise  any 
new  law,  setting  a  rate  or  value  upon  such  coin. 

For  the  reasons  I  have  before  given,  however  it  may 
be  thought  expedient  and  useful  to  pass  an  act  for  the 
purposes  intended  by  this  act,  I  am  of  opinion,  that 
this  act  is  not  fit  to  pass  into  a  law. 

MAT.  LAMB. 

Lincoln's  Inn,  Dec,  14,  1748. 


OF  THE  COLONIAL  CONSTITUTIONS.  429 

(27.)  Mr,  West's  observations  on  the  continuance  of 
the  revenue  acts  of  the  'Jamaica  Assembly. 

To  the  Right  Hon.,  the   Lords  Commissioners   of  Trade 

and  Plantations. 
My  Lords; 

Tn  obedience  to  your  Lordships'  commands,  I  have 
considered  the  following  state  of  a  case,  and  quvre,  re- 
lating to  some  acts  of  Jamaica,  transmitted  to  me  by 
Mr.  Popple,  in  his  letter  of  the  17th  of  February, 
1721-22. 

Several  laws  of  Jamaica  were  confirmed  by  King 
Charles  II.  in  the  year  1684,  for  the  term  of  twenty-one 
years  only,  during  which  time,  viz  :  in  the  year  1688,  a 
revenue  act  passed,  supposed  to  have  been  perpetual, 
but  never  confirmed  by  the  crown. 

In  1703,  a  new  revenue  act  passed,  for  the  space  of 
one  and  twenty  years,  whereby  all  the  laws  of  Jamaica, 
formerly  confirmed  for  twenty-one  years,  by  King 
Charles  the  Second,  were  further  continued  for  the  term 
of  that  act,  which  was  for  twenty-one  years  more,  ex- 
cepting- a  revenue  act,  passed  in  1683,  and  a  subse- 
quent act  in  the  year  1688,  which  arc  repealed,  by  the 
abovementioned  law  of  1703  ;  but  the  last  mentioned 
laAV  being  only  temporary,  and  it  being  expressly  de- 
clared therein,  that  the  said  act,  and  all 'and  every 
clause  or  clauses  therein  contained,  shall  be  and  remain 
in  force  for  the  space  of  twenty-one  years  from  the  1st 
of  October,  1703  :  quxre.  Whether  the  two  revenue 
acts  of  1683,  and  1688,  thereby  intended  to  be  repealed, 
are  absolutely  repealed  or  only  suspended, during  the  time 
prescribed  for  the  continuance  of  the  act  in  1703  ? 

I  have   also  considered    the    two   annexed    clauses 


430  OPINIONS  OF  EMINENT  LAWYERS. 

of    the    above-mentioned    revenue    act    of     1703. 

Every  act  whatsoever,  that  passes  into  law,  is  in  it- 
self perpetual,  unless  there  are  words,  in  the  body  of  it, 
to  determine  its  duration, 

And  in  relation  to  the  revenue  act  of  1703, 1  must  beg 
leave  to  observe,  that  the  clause  for  its  duration  is  alto- 
gether in  the  affirmative,  "that  it  shall  be,  and  remain 
in  force,  for  the  space  of  twenty-one  years;"  but,  then, 
as  there  are  no  negative  words,  by  which  it  is  enacted 
that  "it  shall  continue  so  long,  and  110  longer,"  it  may 
be  made  a  question  in  law,  whether  that  act  of  1703  is 
not,  in  itself,  perpetual. 

The  revenue  in  Jamaica  has  been  provided  for  by 
two  several  acts,  one  in  1688,  and  the  other  in  1703, (for, 
as  to  that  in  1683,  there  is  no  doubt  but  that  is  not  in 
force,)  and  the  act  of  1688  is  said,  in  the  state  of  the 
case,  to  have  been  enacted  for  a  perpetual  law,  and  con- 
sequently, would  be  still  in  force,  was  it  not  for  the  re- 
pealing clause  in  the  act  of  1703.  But,  as  I  suppose  it 
is  indifferent  to  the  government,  whether  the  revenue  is 
settled  either  by  one  or  the  other  of  these  acts,  so  I 
think  it  is  most  certain,  that  one  of  the  two  must  be 
still  in  force,  for,  if  the  act  of  1703  be  construed  to  be 
not  now  in  force,  but  to  be  temporary,  then  the  act  of 
1688  must  revive,  by  reason  that  the  operation  of  the 
act  of  1703  ceases  and  determines;  but  if  the  act  of 
1688  be  supposed  to  be  absolutely  repealed,  it  can  only 
be  by  reason  that  there  are  not  any  negative  words,  and 
no  longer,  (as  is  usual  in  all  the  temporary  acts  passed 
in  England,)  to  determine  its  duration  ;  and,  conse- 
quently, the  act  of  1703,  and  the  provision  for  the  reve- 
nue thereby  enacted,  must  be  still  in  full  force. 

RICH.  WEST. 
March  2,  1721-22, 


OF  THE  COLONIAL  CONSTITUTIONS.         431 

(29.)  The  observations  of  the  Attorney  and  Solicitor- 
General^  Ryder  and  Murray \  on  the  acts  of  the  Jamaica 
Assembly,  in  1751. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships7  desire,  signified  to 
us  by  Mr.  Pownall,  in  his  letter  of  the  2d  of  February 
last  setting  forth,  that  your  Lordships  had  taken  into 
consideration  our  report  upon  four  acts  passed  in  the 
island  of  Jamaica  in  November  and  December,  1751, 
and  had  been  attended  by  the  agent  for,  and  by  seve- 
ral of  the  principal  merchants,  and  others,  trading  to, 
and  interested  in,  that  island  ;  and  they  having  express^ 
ed  a  concern,  that  they  had  not  an  opportunity  ofbe=- 
in  heard  before  us  upon  these  acts,  when  they  were  un- 
der our  consideration  :  your  Lordships  had  directed 
them  to  be  transmitted  back  to  us  for  our  further  con- 
sideration ;  and  that  we  should,  in  our  report  thereon, 
state  to  your  Lordships  the  particular  objections  which 
we  say  in  our  former  report  we  have  to  each  of  those 
laws,  both  in  matter  and  substance,  to'the  end  that  if 
they  should  be  laid  before  His  Majesty  for  his  disappro- 
bation, as  having  been  passed  without  clauses  of  sus- 
pension, contrary  to  the  twenty-second  of  His  Majesty's 
instructions,  your  Lordships  may  be  enabled  to  point 
out  the  particular  objections  to  the  Governor,  and  di- 
rect him  to  get  such  parts  of  them  as  shall  be  for  His 
Majesty's  service  and  the  public  utility  and  advantage 
of  the  island,  re-enacted  with  proper  clauses  of  suspen- 
sion. Also  transmitting,  by  your  Lordships'  directions, 
the  two  following  acts^  passed  in  the  said  island  in  No- 


432  OPINIONS  OP  EMINENT  LAWYERS. 

vember  and  December,  1751,  the  latter  of  which  had 
been  complained  of  by  Mr.  Forbes,  the  prevost  marshal, 
as  invading  the  rights  of  his  office,  and  desiring  our 
opinion  thereupon;  viz  :  "an  act  for  making  good  and 
wholesome  provision,  for  raising  and  establishing  the 
credit  of  this  island,  and  repealing  of  an  act,  entitled  a 
supplemental  and  explanatory  act  ;"  "an  act  for  the 
further  regulation  of  the  provost-marshal's  proceedings, 
establishing  priority  of  judgments,  quieting  possession  of 
slaves,  purchased  upon  renditioni,  and  for  limitation 
upon  bonds,  mortgages,  judgments,  and  other  securities, 
and  empowering  the  assistant  judges  to  sign  writs,  and 
other  process." 

We  have,  according  to  your  Lordships'  desire,  re-con- 
sidered the  four  acts  of  assembly,  passed  in  Jamaica  in 
November  and  December,  1751,  and  have  also  consider- 
ed the  two  other  acts  of  the  same  assembly,  mentioned 
in  Mr.  Pownal's  letter,  on  which  your  Lordships  are 
pleased  to  desire  our  opinion,  and  have  been  attended 
by  John  Sharpe  Esq.,  as  for  the  said  island,  upon  those 

acts. 

We  did,  in  our  former  report  of  the  22d  of  January 

last,  confine  ourselves  to  one  general  reason  for  disap- 
proving the  first  four  acts,  arising  from  their  being 
passed  without  a  clause  of  suspension,  in  breach  of  the 
twenty-second  article  of  the  Governors  instructions  ;  as 
the  obedience  to  that  instruction  has  been  always 
thought  most  necessary  to  be  secured,  and  can  be  no 
way  so  effectually  secured,  as  by  constantly  denying  the 
royal  approbation  to  every  act  passed  in  contradiction 
to  it ;  and  we  apprehend,  the  suffering  any  plain  devia- 
tion from  that  rule  to  take  effect,  will  be  attended  with 
inconvenience  to  His  Majesty  and  his  subjects  both  here 
and  abroad. 


OF  THE  COLOMAL  CONSTITUTIONS.         433 

But  there  are  othor  objections  to  each,  sufficient  in 
our  opinion  to  prevent  His  Majesty's  approbation.  As 
to  the  first,  entitled  "an  act,  providing  that  all  the 
judges  of  the  supreme  court  of  judicature  of  this  island, 
shall  hold  their  offices  quamdiu  se  lene  gesserint"  it  di- 
rectly affects  the  royal  prerogative  in  a  point  of  great 
moment,  and  for  which  no  occasion  is  pretended  to  be 
given,  by  the  abuse  of  any  power  committed  to  the 
Governor  ;  or,  if  there  had  been  any,  it  would  be  much 
more  suitable  to  His  Majesty's  honor  and  dignity  to  re- 
form it  by  his  own  authority,  fully  sufficient  for  that 
purpose,  in  such  manner  as  to  his  royal  wisdom  should 
seem  meet,  than  by  the  imposition  of  an  act  of  assembly; 
nor  does  it  appear  to  us,  that  in  the  situation  and  cir- 
cumstances in  which  this  island  or  the  other  American 
plantations  stand,  it  would  be  advisable,  either  for  the 
interest  of  the  plantations  themselves,  or  of  Great  Brit- 
ain,that  the  judges  in  the  former  should  hold  their  places 
quamdin  se  lene  gesserint. 

As  to  the  second  act,  entitled  "an  act  for  choosing 
the  members  of  the  assembly  of  this  island  by  bal- 
lot, and  for  the  more  effectual  preventing  abuses  and 
indirect  practices  in  elections  :"  as  the  present  method 
of  election  has  been  established  by  virtue  of  His  Majes- 
ty's instructions,  and  long  usage,  agreeable,  in  general, 
to  the  practise  here,  and  in  all  the  other  plantations  ex- 
cept one,  and  nothing  has  happened  in  this  to  Micvr  the 
inconvenience  of  it,  we  think  it  very  dangerous  and  im- 
prudent to  make  so  great  an  innovation  as  is  intended 
by  this  act. 

As  to  the  'third  act,  entitled  "an  act  for  explaining 
an  act  for  the  further  quieting  possessions,  and  regula- 
ting resurveys,  and  for  establishing  reputed  boundaries," 
56 


434  OPINIONS    OF  EMINENT  LAWYERS. 

v>re  think  it  by  no  means  advisable  to  confirm  a  law 
w'r  ih  bus  a  retrospect  for  twenty  yeary,  from  the  year 
17-)  i,  vwhen  the  former  recited  act  was  made,)  in  points 
which  do  not  appear  to  have  been  within  either  the 
words  or  meaning  of  that  act,  and  without  excepting 
cases  that  may  have  been  adjudged,  or  where  the  par- 
tie-;  have  enjoyed  otherwise,  and  whose  quiet  and  legal 
possessions  may  be  disturbed  by  an  act  passed  under 
the  color  of  quieting  possessions. 

As  to  the  fourth  act,  entitled  "an  act  for  appointing 
commissioners  of  nisi  priiiti,  and  enlarging  the  jurisdic- 
tion of  the  justices  of  the  peace,  in  matters  of  debt  ;" 
this  is  so  extensive  a  change  in  the  constitution  of  the 
government,  with  respect  to  the  administration  of  jus- 
tice, and  so  great  an  encroachment  upon  the  royal  pre- 
rogative, to  which  the  creating  and  establishing  courts 
of  justice  belongs,  that  we  cannot  think  it  advisable  to 
admit  of  such  a  precedent,  nor  do  we  think  that  the  va- 
riation proposed  by  the  act  would  be  beneficial  to  His 
Majesty's  subjects,  if  carried  into  execution. 

As  to  the  fifth  act,  entitled  "an  act  for  making  good 
and  wholesome  provision  for  raising  and  establishing 
the  credit  of  this  island,  and  repealing  of  an  act,  entitled 
a  supplemental  and  explanatory  act :"  the  part  relating 
to  the  increase  of  costs  seems  to  us  unnecessary  and 
dangerous,  the  practice,  already,  of  giving  costs,  includ- 
ing counsel's  fees,  and  all  other  expenses  that  are  rea- 
sonable ;  and  more  ought  not  to  be  allowed. 

The  clause  that  prescribes  a  new  writ  of  execution, 
proceeds  partly  on  a  mistake,  as  if  lands  are  now  subject 
to  judgments  for  debt,  which  they  are  in  fact,  both  by 
the  general  law  and  the  British  act  of  the  fifth  of  his 
present  Majesty,  where  the  judgment  is  against  theorig- 


OF    THE    COLONIAL    CONSTITUTION S.  435 

inal  debtor  ;  and  if  against  his  heir  or  executor,  his  own 
lands  ought  not  to  be  subjected,  unless  he  has  embez- 
zled his  testator's  assets,  as  this  act  unjustly  does,  with- 
out distinction. 

The  clause  for  giving  five  per  cent,  to  present  credi- 
tors in  Great  Britain,  for  money  lent  there  to  debtors  in 
Jamaica,  means  either  to  give  them  an  interest  they 
have  now  no  right  to,  or,  by  confining  them  to  five  per 
cent,  to  take  away  part  of  their  right,  where  the  con- 
tract was  for  a  higher  rate.  In  both  cases  the  'law  is 
unjust,  and  we  think  it  not  proper  to  be  approved. 

As  to  the  sixth  act,  entitled  "  an  act  for  the  further 
regulation  of  the  provost-marshal's  proceedings,  estab- 
lishing priority  of  judgments,  quieting  possessions  of 
slaves  purchased  upon  venditi&ni,  and  for  limitation  up- 
on bonds,  mortgages,  judments,  and  other  securities,  and 
empowering  the  assistant  judges  to  sign  writs  and  other 
process  :"  the  clause  that  establishes  certain  fees,  with 
restitution  of  what  has  been  been  paid  already  beyond 
them,  has  an  unj  ust  retrospect. 

The  prohibiting  writs  of  execution  to  issue  till  the 
next  court  day  after  judgment,  is  an  unnecessary  and 
dangerous  delay  of  justice,  and  may  give  great  opportu- 
nities of  fraud,  concealments,  and  embezzlements. 

The  clause  relating  to  presumed  satisfaction  of  mort- 
gages, &c.  from  twenty  years  acquiescence,  &c.  is  with- 
out any  limitation,  or  exception,  arising  from  the  cir- 
cumstances of  age,  place,  or  capacity,  of  either  creditor, 
or  debtor,  and  has  a  very  unjust  retrospect  ;  and  we 
think  this  act  not  proper  to  be  approved. 

D.  RYDER. 

Juno  22.  17~>3.  W.  MURRAY. 


436  OPINIONS  OP  EMINENT  LAWYERS. 

(30.)  Mr.  Wesfs  observations  on  an  act  of  the  Vir- 
ginia Assembly,  tending  to  prohibit  the  importation  of 
convicts. 

To  the   Right  Honorable  the  Lords  Commissioners   of 
Trade  and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  an  act  passed  in  the  province  of 
Virginia,  entitled  "  an  act  for  amending  the  act  concern- 
ing servants  and  slaves,  and  for  the  better  government 
of  convicts  imported,  and  for  the  further  preventing  the 
clandestine  transportation  ofpersons  out  of  this  colony." 

To  such  part  of  this  act  as  relates  to  the  government 
of  their  servants  and  slaves,  I  have  no  objection  ;  but, 
then,  I  must  submit  the  other  part,  which  relates  to 
convicts  transported  from  Great  Britain,  to  your  Lord- 
ships' consideration. 

By  act  of  parliament,  persons  convicted  of  felonies 
and  other  crimes,  are  liable  to  be  transported  to  the 
American  colonies,  there  to  be  disposed  of  to  the  plan- 
ters, for  several  terms  of  years.  This  act  of  assembly, 
therefore,  recites,  that  frauds  have  been  committed  by 
the  persons  entrusted  with  the  transportation  of  felons, 
&c.  and  that  many  crimes  had  been  committed  in  that 
colony  by  the  transported  persons  ;  for  remedy  of 
which  it  is  enacted,  first,  that  no  person  importing  fel- 
ons, &c.  into  that  province,  shall  dispose  of  any  convict 
for  a  less  term  of  years,  or  time,  than  what  such  convict 
was  originally  ordered  to  be  transported  for,  as  the  act- 
ing otherwise  than  what  is  here  provided  for,  is  an 
abuse  of  the  law  here,  as  well  as  of  the  planters  there. 
I  think  this  clause  is  very  proper,  and  that  the  penalty 
of  ten  pounds  upon  offenders  is  very  reasonable.  After 


OP  THE  COLONIAL  CONSTITUTIONS.  437 

this  the}'  enact,  that  if  any  convict  person  be  permitted 
to  go  on  shore  at  large  unless  he  be  actually  sold  or  dis- 
posed of  to  some  master,  that,  then,  the  master  of  the 
ship,  wherein  such  convicts  are  imported,  shall  forfeit 
twenty  shillings,  whenever  any  convict  person  shall  be 
apprehended  on  shore.  If  the  mischief  they  would  rem- 
edy by  this  clause,  be,  that  the  importers  of  convicts 
permitted  them  to  go  at  large,  without  ever  disposing  of 
them  to  proper  masters,  the  penalty  seems  to  be  much 
too  small  to  answer  that  end. 

After  this  they  enact,  that  every  master  of  a  vessel 
who  imports  any  convicts,  shall  give  bond,  upon  condi- 
tion that  he  shall  not  suffer  any  convict  to  go  on  shore 
in  the  province,  till  he  be  actually,  and  honajide,  sold 
and  disposed  of.  To  this  clause  it  has  been  objected  on 
behalf  of  the  persons  who  contract  with  the  Lords  of  the 
treasury  for  the  transportation  of  felons,  that  if  it  sub- 
sists they  cannot  execute  their  contracts,  since  it  obli- 
ges them  to  keep  to  their  ships  lying  there,  until  they 
have  disposed  of  all  their  convicts  on  board,  when,  as 
they  cannot  afford  to  keep  their  ships  there  so  long, 
without  taking  in  a  loading  homewards :  I  am  not  mer- 
chant enough  to  know  what  force  there  is  in  this  objec- 
tion ;  but,  according  to  my  apprehension,  the  same 
end  might  be  obtained  by  obliging  the  persons  on  shore, 
to  whom  the  convicts  should  be  consigned,  and  not  the 
masters  of  ships,  to  give  security,  not  to  permit  the  con- 
victs to  go  at  large  or  out  of  custody,  in  the  province, 
until  they  should  be,  as  above,  actually  and  bona  fide 
disposed  of ;  since,  by  that  means,  the  country  would 
be  as  effectually  secured  against  any  mischief  the  con- 
victs might  do. 

In  the  two  following  clauses  it  is   enacted  that  every 


438  OPINIONS    OF     EMINENT     LAWYERS. 

• 

person,  who,  upon  importation,  has  the  disposal  ot  any 
convicts,  shall,  before  he  be  permitted  to  dispose  of  them 
give  security  in  the  penalty  of  £100,  for  the  good  be- 
havior of  such  convicts  during  the  space  of  two  months 
after  they  shall  be  disposed  of  to  any  master  ;  and  that 
every  person  who  shall  purchase  any  of  the  said  con- 
victs, shall  immediately  give  security,  in  the  penalty  of 
ten  pounds,  for  the  good  behavior  of  such  convicts,  dur- 
ing the  whole  time  for  which  they  are  respectively 
transported.  ,?f!; 

To  these  clauses  the  objection  is,  that  they  amount  to 
a  prohibition  of  any  convicts  being  imported  into  that 
province,  since  the  contractors  for  transportation  have 
represented  to  me  that  they  cannot  get  any  masters  of 
vessels  who  will  give  the  above  mentioned  security,  nor 
can  it  be  expected  that  any  persons  will  purchase  any 
of  the  said  convicts  upon  those  terms. 

The  transportation  of  felons,  &c.  is  by«act  of  parlia- 
ment ;  and,  if  the  example  set  by  this  province  should 
be  followed  by  the  other  colonies,  the  execution  of  the 
laws  concerning  transportation  will  be  rendered  wholly 
impracticable. 

And,  therefore,  upon  the  whole  matter,  if  your  Lord- 
ships shall  think  that  the  above  mentioned  clauses  will 
amount  to  a  prohibition,  I  am  then  of  opinion  that  this 
act  is  not  proper  to  be  passed  into  law  ;  but  if,  on  the 
contrary,  you  shall  be  of  opinion  that  they  import  no 
more  than  a  reasonable  security  to  the  inhabitants  of 
that  province  against  any  mischiefs  or  crimes  that  may 
be  committed  by  the  convicts,  I  have  then  no  objection 
to  the  act. 

RICH.  WEST. 

July  3, 1723, 


OP  THE  COLONIAL  CONSTITUTIONS.         439 

(31.)  1  lie  observations  of  the  same  lawyer,  on  an  act 
of  the  same  Assembly,  tending  to  prevent  free  Hack  men 
from  voting  at  elections, 

To  the  Right  Hon.    the  Lords  Commissioners  of  Trade 

and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  the  several  following  acts,  passed 
in  the  province  of  Virginia,  in  1723. 

And  as  to  the  act  entitled  "an act,  appointing  xa  treas- 
urer, and.  empowering  him  to  receive  the  monies  in  the 
hands  of  the  late  treasurer,"  I  have  no  objection  to  it, 
in  point  of  law,  only  I  would  observe  to  your  Lordships, 
that  it  seems  to  be  now  a  practise,  in  all  the  American 
colonies,  for  their  respective  general  assemblies  to  as- 
sume to  themselves  the  nomination  of  all  officers  rela- 
ting to  the  revenue. 

As  to  the  act,  entitled  "an  act,  directing  the  trial  of 
slaves  committing  capital  crimes,  and  for  the  more  ef- 
fectual punishing  conspiracies,  and  insurrections  of  them, 
and  for  tho-better  government  of  negroes,  mulattoes,  and 
Indians,  bound  or  free,"  there  is  in  it  a  short  paragraph 
by  which  it  is  enacted  that  from  and  after  the  passing 
the  act,  no  free  negro,  mulatto,  or  Indian,  whatsoever, 
shall  have  any  vote  at  the  election  of  burgesses,  or  any 
other  election  whatsoever. 

Although  I  agree  that  slaves  are  to  be  treated  in 
such  a  manner  as  the  proprietors  of  them  (having  a  re- 
gard to  their  number)  may  think  necessary  for  their  se- 
curity, yet  I  cannot  see  why  one  freeman  should  be  used 
worse  than  another,  merely  upon  account  of  his  com- 
plexion. I  have  no  objection  to  the  putting  such  limits 


440  OPINIONS    OF  EMINENT    LAWYERS. 

and  conditions  upon  those  persons  as  may  be  enfran- 
chised for  the  future,  as  they  please ;  but  to  vote  at  elec- 
tions of  officers,  either  for  a  county,  or  parish,  &c.  is  in- 
cident to  every  freeman  who  is  possessed  of  a  certain 
proportion  of  property,  and,  therefore,  when  several  ne- 
groes have  merited  their  freedom  and  obtained  it,  and, 
by  their  industry,  have  acquired  that  proportion  of  prop- 
erty, so  that  the  above-mentioned  incidental  rights  of 
liber  I  y  are  actually  vested  in  them,  for  my  own  part  I 
am  persuaded  that  it  cannot  be  just,  by  a  general  law, 
without  any  allegation  of  crime,  or  other  demerit  what- 
soever, to  strip  all  free  persons  of  a  black  complexion, 
(some  of  whom  may,  perhaps,  be  of  considerable  sub- 
stance,) from  those  rights  which  are  so  justly  valuable 
to  every  freeman.  But  I  submit  the  consideration  of 
this  to  your  Lordships. 

As  to  the  several  other  following  acts,  passed  in  the 
same  province  in  the  said  year,  1723,  entitled  uan  act 
for  the  settling  and  better  regulation  of  the  militia ;" 
"an  act  for  the  better  securing  the  payment  of  levies,  and 
restraint  of  vagrant  and  idle  people,  and  for  the  more 
effectual  discovery  and  prosecution  of  persons  having 
bastard  children  ;"  "an  act  for  enlarging  the  jurisdic- 
tion of  the  court  of  Hustings,  in  the  city  of  Williarns- 
burgh,  within  the  limits  thereof  ;"  "  an  act  for  raising  a 
public  levy  ;"  "an  act  for  reviving  an  act,  entitled  an  act 
for  security  and  defence  of  the  country  in  times  of  dan- 
ger ;"  "an  act  for  dissolving  the  parish  of  Wilmington 
in  the  counties  of  James  City  and  Charles  City,  and 
adding  the  same  to  the  other  parishes ;"  and  "an  act  for 
dividing  Saint  Stephen's  parish,  in  the  county  of  King 
and  Queen  :"  to  all  which,  I  have  no  objection  to  their 
being  passed  into  law. 

Jan.  16,  1723.  RICH.  WEST. 


OP  THE  COLONIAL  CONSTITUTIONS.         441 

(32.)  The  same  lawyer's  objections  to  an  act  of  the 
Pennsylvania  Assembly,  establishing  a  paper  credit. 

To   the   Right  Honorable   the  Lords  Commissioners  of 

Trade  and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  the  four  following  acts,  passed 
in  Pennsylvania,  in  1722  and  1723,  entitled  "an  act  for 
the  emitting  and  making  current  £15,000  in  bills  of 
credit  ;"  "an  act  for  the  better  and  more  effectual  put- 
ting in  execution  an  act  of  assembly  of  this  province, 
entitled  an  act  for  emitting  and  making  current  £15,000 
in  bills  of  credit ;"  "a  supplementary  act  to  the  act  enti- 
tled an  act  for  emitting  and  making  current  £15,000  in 
bills  of  credit  ;"  and  "an  act  for  emitting  and  making 
current  £30,000  in  bills  of  credit." 

These  four  acts  relate  to  the  establishing  a  paper 
credit  in  Pennsylvania  ;  and  your  Lordships  have  lately, 
in  other  cases,  been  of  opinion  against  all  projects  of 
that  kind,  I  think  they  ought  not  to  be  passed  into 
law. 

I  have  likewise  perused  and  considered  an  act  passed 
in  the  said  island,  entitled  "an  act  directing  the  process 
of  summons  against  freeholders." 

The  intent  of  this  act  is  to  exempt  all  freeholders,  to 
the  value  of  fifty  acres  of  land,  from  arrest ;  but,  as  they 
may  contract  debts  to  a  hundred  times  or  more  that 
value,  and  have  considerable  personal  estates  which 
they  may  run  away,  I  think  it  is  an  unreasonable  priv- 
ilege, and  not  proper  to  be  passed  into  law. 

I  have  likewise  perused  and  considered  the  three  fol- 
lowing acts,  passed  in  the  said  island,  entitled  "an  act 
57 


442  OPINIONS  OP  EMINENT  LAWYERS. 

for  respiting  executions  upon  certain  judgments  of  courts 
in  this  province ;''  an  act  to  rectify  proceedings  upon 
attachments;"  "an  act  for  regulating  and  establishing 
fees  :"  to  all  which,  I  have  no  objection  to  their  being 

passed  into  law.  •„••.< 

RICH.  WEST. 
May  10,  1T25. 

(33.)    The  observations  of  tlie  same*  lawyer,   on  the 
peculiarities,  and  unfitness,  of  other  acts  of  the  same  As- 
sembly. 
To  the  Right  Honorable  the  Lords   Commissioners   of 

Trade  and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  the  several  acts  of  the  province  of  Pennsylva- 
nia, transmitted  to  me  by  Mr.  Secretary  Popple  ;  and  as 
to  those  acts,  which  are  contained  in  the  bundle,  enti- 
tled "acts  passed  between  the  14th  of  October,  annoqne 
domini,  1712,  and  the  27th  of  March,  annoque  domini, 
1713,  I  have  no  objection  unto  any  of  them  being  pass- 
ed into  laws,"  only  I  must  beg  leave  to  observe  unto 
your  Lordships,  that  in  the  act  entitled  "  an  act  for  es- 
tablishing orphans  court,"  there  is  a  clause,  by  which  the 
justices  of  the  orphans  court  are  empowered  to  exercise 
all  the  authorities  and  jurisdictions  granted  unto  them 
by  another  law  of  the  province,  entitled  "an  act  for  the 
better  settling  intestate  estates  ;"  and  also  in  the  act  en- 
titled "an  act  for  mending  divers  laws  therein  mention- 
ed," there  is  a  clause,  by  which  it  is  enacted  that  every 
person  convicted  of  felony,  in  pursuance  of  another  law 
of  the  province,  entitled  "an  act  against  robbing  and 
stealing,"  shall  be  committed  to  gaol. 

As  the  two  clauses  in  these  two  several  acts  refer  to 


OP  THE  COLONIAL  CONSTITUTIONS.  443 

other  laws  of  the  province  not  transmitted  to  me,  I  be- 
lieve that  your  Lordships  will  judge  it  necessary  to  give 
directions  to  your  secretary,  to  examine  whether  those 
two  acts  have  been  confirmed  or  not,  since  if  upon  such 
examination,  it  should  appear  that  the  said  acts  have 
been  repealed,  I  am  of  opinion  that  your  Lordships  will 
think  it  highly  improper  to  pass  these  two  acts  into  laws 
(though  otherwise  there  be  no  objection  unto  them,) 
since  by  the  general  words  of  the  clauses  above-mention- 
ed, your  Lordships  may  confirm  two  other  acts  to 
which  the  royal  assent  has  already  been  denied. 

I  have  also  perused  the  several  acts  contained  in  the 
bundle,  entitled  "acts  passed  between  the  14th  of  Octo- 
ber annoque  domim,  1714,  and  the  28th  of  May,  anno>j_ue 
dwniiii,  1715,  among  which  there  is  an  act,  entitled  "an 
act  of  privileges  to  a  freeman,"  which  act  I  take  to  be 
the  same,  or  at  least  to  the  same  purpose,  with  that  act 
which  is  mentioned  in  Sir  Robert  Raymond's  report, 
22d  of  December,  annoque  clomini,  1713,  to  which  I 
would  crave  leave  to  refer  your  Lordships  ;  and,  indeed, 
if  the  inhabitants  of  that  province  do  not,  by  the  gene- 
ral words  of  this  act,  intend  to  interfere  with  the  act  of 
the  7th  and  8th  of  Will.  III.  entitled  "an  act  for  pre- 
venting fraud,  and  regulating  abuses,  in  the  plantation 
trade,"  it  is  very 'difficult  to  imagine  what  other  inten- 
tion they  can  possibly  have,  since,  by  the  law  already 
in  being,  the  freemen  are  entitled  to  all  the  privileges 
mentioned  therein,  so  far  as  is  consistent  with  the  above- 
mentioned  act  of  King  William,  or  any  other  laws  of 
this  kingdom. 

There  is  also  another  act,  entitled  "an  act  for  the 
ease  of  such  as  conscientiously  scruple  to  take  the  solemn 
affirmation  formerly  allowed  in  Great  Britain."  As  no 


444  OPINIONS    OF    EMINENT    LAWYERS. 

man  is  a  greater  friend  to  liberty  of  conscience  than 
myself,  as  to  my  own  particular,  I  have  no  objection  to 
this  act  being  passed  into  a  law  ;  yet  I  think  it  my  du- 
ty to  observe  to  your  Lordships,  that,  as  the  affirmation 
to  be  allowed  by  this  act  is  materially  different  from 
that  practised  in  Great  Britain,  (the  name  of  Almighty 
God  being  not  mentioned  therein,)  your  Lordships  may 
possibly  think  it  proper  particularly  to  consider  how  far 
the  circumstances;  of  this  province  may  render  it  neces- 
sary to  extend  the  toleration  to  Quakers,  further  than 
by  the  laws  of  Great  Britain  has  yet  been  done. 

There  is  also  another  act,  entitled  "an  act  for  laying 
a  duty  on  wine,  rum,  brandy,  and  spirits,  cider,  and 
hops,  imported  into  this  province ;"  and  there  is  also 
another  act,  entitled  "an  act  for  laying  a  duty  upon  ne- 
groes imported  into  this  province  :"  I  submit  it  to  your 
Lordships'  consideration,  how  far  it  may  be  proper  for 
the  inhabitants  of  Pennsylvania  to  lay  duties  upon  the 
above-mentioned  commodities  :  to  which  consideration 
may  be  added,  that  in  the  act  relating  to  negroes^  there 
is  a  power  given  to  the  officers  to  break  open  houses,  up- 
on suspicion  of  negroes  being  there,  generally,  without 
any  limitation  or  restriction  for  the  exercise  of  it,  which 
power  extends  to  nights  as  well  as  days,  a  power  which 
is  rarely  admitted  by  the  laws  of  Great  Britain  in  offen- 
ces of  an  inferior  nature. 

As  to  the  other  acts  contained  in  the  above-mentioned 
bundles,  I  have  no  objection  to  them. 

RICH.  WEST. 
March  6,  1718-19. 


OF  THE  COLONIAL  CONSTITUTIONS.         445 

(34.)  1  he  observations  of  'the  Solicitor-General,  Thom- 
son, (in  an   act  of  tlie  New  Jersey  Assembly,  fjr  ascer- 
taining the  seat  of  government. 
Sir. 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners for  Trade  and  Plantations,  signified  by  yours  of 
the  5th  instant,  I  have  considered  the  act  to  repeal  a 
former  act  of  general  assembly  of  this  province,  entitled 
"an  act  for  the  ascertaining  the  place  of  the  sitting  of 
the  representatives  to  meet  in  general  assembly."  And 
as  the  act  to  be  repealed  was  made  so  lately  as  the  eighth 
year  of  Queen  Anne  and  is  found  to  be  inconvenient, 
and  asserted  to  be  contrary  to  the  royal  instructions,  I 
do  not  apprehend  that  there  ^can  be  any  scruple,  why 
His  Majesty  should  not  approve  of  this  act  sent  over, 
which  leaves  the  place  of  the  meeting  of  the  assembly 
to  be  appointed  as  shall  be  found  most  convenient  ;  and 
the  rather,  for  that  the  act  to  be  repealed  was  a  re- 
straint of  the  King's  prerogative. 

WILL.  THOMSON. 

December  9,  1717. 

(35.)    Mr.  West1 8  remarks  on  an  act  of  the  same  As- 
sembly, tending  to  lessen  the  jurisdiction   of  the  supreme 
courts  of  justice, 
To  the  Right  Hon.,  the  Lords  Commissioners  of  Trade 

and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Secretary  Popple,  I  have  perused  and 
considered  of  three  acts,  passed  in  the  province  of  New 
Jersey,  in  America,  entitled  as  follows,  viz  :  "an  act  for 
shortening  of  law-suits,  and  regulating  the  practice  of 
the  law  ;"  "an  act,  enforcing  the  observation  of  the  or- 


446  OPINIONS  OF  EMINENT  LAWYERS. 

dinance  for  establishing  fees  within  this  province  ;"  "an 
act  for  acknowledging  and  recording  of  deeds  and  con- 
veyances of  land  within  each  respective  county  of  this 
province." 

As  to  the  general  purview  of  which  acts  I  have  no 
objection ;  but  inasmuch  as  those  acts  are  represented 
by  the  Governor  and  by  the  judges  of  thfc  supreme  courts 
of  justice  in  that  province,  to  be  entirely  destructive  of 
their  jurisdiction,  and,  as  in  their  opinion,  not  fit  to  be 
passed  into  law,  especially  considering  that  they  are  in- 
tended to  be  perpetual,  and  have  also  been  represented 
unto  me  that  those  acts  are  very  prejudicial  to  the  right 
of  those  officers  who  are  appointed  by  patents  from  the 
Crown,  by  lessening  their  usual  and  accustomed  fees  in 
such  a  manner  as  that  there  is  not  a  sufficient  encourage- 
ment for  any  person  to  undertake  the  execution  of  those 
offices  ;  I  am  therefore  of  opinion,  that  those  acts  are 
not  proper  to  be  passed,  unless  there  be  clauses  inserted 
into  them  to  save  the  jurisdiction  of  the  superior  courts, 
and  the  rights  of  those  few  officers  in  the  province,  who 
are  appointed  by  patent  from  the  Crown. 

RICH.  WEST. 

December  11, 1718. 

(36.)  The  report  of  the  Attorney  and  Solicitor-Gene- 
ral, Ryder   and  Murray,   on  some  singular  acts  of  the 
New  Jersey  Assembly. 
To  the   Right  Honorable,  the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  directions,  signified 
to  us  by  Mr.  Hill,  in  his  letter  of  the  17th  of  July,  1749, 
with  the  five  hereinafter-mentioned  acts  passed  in  the 
province  of  New  Jersey  in  February,  1747-8,  desiring 


OP  THE  COLONIAL  CONSTITUTIONS.          447 

our  opinion  thereupon  as  soon  as  we  conveniently  can, 
viz  :  "an  act  for  naturalizing  Peter  Landerbouch,  Cath- 
erine, Elizabeth,  and  Barbara,  his  three  daughters  ;"  "an 
act  for  punishing  the  coiners  and  counterfeiters  of  for- 
eign coin  passing  current,  and  the  counterfeiters  of  bills 
of  credit  of  this  province ;"  "an  act  for  avoiding  actions 
of  slander,  and  for  stay  of  proceeding,  until  the  first 
day  of  October,  1748,  in  other  civil  actions  against  the 
late  rioters ;"  "an  act  for  the  suppressing  and  prevent- 
ing of  riots,  tumults,  and  other  disorders  within  this  colo- 
ny ;"  "an  act  to  pardon  the  persons  guilty  of  the  insur- 
rections, riots,  and  disorders,  raised  and  committed  in 
this  province." 

Mr.  Hill  is  further  directed  by  your  Lordships  to  ac- 
quaint us,  that  the  first  of  these  acts  appears  to  be  of  an 
unusual  nature,  and  that  you  do  not  find  that  acts  of 
this  sort  have,  at  any  time,  been  passed  in  his  Majesty's 
colonies  in  America  ;  that  the  four  last  mentioned  acts 
were  passed  on  occasion  of  great  riots  and  disorders  hav- 
ing been  committed  in  that  province,  and  which  now 
are  arisen  to  such  a  height  as  to  claim  the  serious  atten- 
tion of  his  Majesty's  ministers,  who  have  had  one  meet- 
ing thereupon,  and  are  to  meet  again  in  a  few  days  : 
your  Lordships,  therefore,  desire  that  you  may  be  favor- 
ed with  our  opinion  with  all  possible  dispatch,  the  prov- 
ince being  in  the  utmost  confusion. 

As  to  the  act  for  punishing  coiners,  &c.  we  do  not  see 
any  objection  to  that  part  which  concerns  the  coiners  of 
foreign  coin  made  current  by  lawful  authority ;  but  the 
extending  the  penalty  to  coiners  of  foreign  coin,  that  is, 
or  shall  be,  by  common  consent,  usually  passed,  and  ta- 
ken or  received  as  full  satisfaction  for  debts,  appears  to 
us  very  improper,  both  on  account  of  the  great  uucer- 


448  OPINIONS  OP  EMINENT  LAWYERS. 

tainty  of  the  description  on  which  the  capital  punish- 
ment is  to  depend,  and  the  too  great  credit  that  is  given 
to  what  is  called  common  consent,  not  founded  on  the 
act  of  his  Majesty,  or  of  the  general  assembly. 

As  for  the  act  for  naturalization  of  Landerbouch,  &c. 
since  your  Lordships  have  been  pleased  to  acquaint  us, 
by  Mr.  Hill's  letter,  that  you  do  not  find  any  acts  of  this 
sort  have,  at  any  time,  been  passed  in  his  Majesty's  col- 
onies in  America,  and  there  appears  nothing  special  in 
this  case  :  we  cannot  think  it  advisable  to  begin  the  pre- 
cedent now,  and  in  this  colony. 

As  to  the  act  of  pardon  to  the  persons  guilty  of  the 
late  insurrectious,  which  by  the  act  itself  appears  to 
have  been  thought  to  amount  to  high  treason  in  some  of 
the  parties,  it  is  a  mattor  that  must  rest  entirely  in  his 
Majesty's  royal  breast,  weighing  all  the  circumstances 
and  consequences  that  may  be  foreseen  or  appre- 
hended. 

But  it  appears  to  us  very  extraordinary,  that  in  a 
matter  of  so  great  moment,  in  which  the  peace  of  the 
whole  province  has  been  disturbed,  and  the  conduct  of 
the  rioters  seems  to  have  been  no  less  than  a  rebellion, 
and  the  only  alleviation,  so  much  as  insinuated  as  to  any 
of  the  criminals,  is  their  being  artfully  misled,  a  pardon 
of  all  should  be  granted,  without  excepting  even  those 
who  misled  the  rest,  or  leaving  any  one  to  the  justice 
of  the  law,  besides  those  who  have  been  actually  indic- 
ted for  treason,  and  their  trial  suspended. 

As  to  the  act  for  avoiding  actions  of  slander,  and  for 
stay  of  proceedings  in  other  civil  actions,  we  do  not 
know  enough  of  the  grounds  of  those  actions  of  slander 
to  form  any  judgment  upon  that  part  of  it,  much  less  to 
see  how  that  is  so  connected  with  the  late  insurrections, 


OP    THE  COLONIAL  CONSTITUTIONS.  449 

as  to  make   those  any  reasons   for  such  a  suspension. 

With  regard  to  the  other  part  of  the  act  relating  to 
the  stay  of  other  civil  actions  against  the  late  rioters, 
we  do  not  see  upon  what  reason  it  can  be  founded,  that 
his  Majesty's  subjects,  who  have  been  so  grossly  injured 
in  their  property,  should  be  delayed  in  the  recovery  of 
that  satisfaction  which  the  law  gives  them. 

As  to  the  act  for  suppressing  riots,  &c.  it  appears  to  us 
to  have  a  tendency  not  to  suppress,  but  encourage  riots, 
as  it  inflicts  a  much  less  punishment  than  what  the  law 
at  present  does,  the  penalty  of  ten  pounds,  and  their 
own  security  in  one  hundred  pounds  for  good  behavior 
for  three  years,  being  by  no  means  adequate  to  the 

crime. 

D.  RYDER. 

July  21,  1749.  WM.  MURRAY. 

(37.)  Mr.  West's  opinion  on  the  revenue  acts  of  Ja- 
maica, upon  special  questions  put  on  them. 

In  November,  1716,  three  acts  were  passed,  viz  :  "an 
act  to  oblige  several  inhabitants  of  this  island  to  provide 
themselves  with  a  sufficient  number  of  white  people, 
and  to  maintain  such  as  shall  come  over  ;"  an  act,  en- 
titled "an  act  to  encourage  the  bringing  over  and  set- 
tling of  white  people  in  this  island  ;"  and  an  act,  entitled 
"an  act  to  impose  duties  upon  several  commodities,  to 
defray  the  extraordinary  charges  of  the  government, 
and  applying  the  same  to  several  uses,"  wherein  are 
the  clauses  annexed,  marked  Nos.  A.  B.  and  C.;  and  in 
August,  1717,  an  act  entitled  "an  act  for  continuing  an 
act  to  impose  duties  on  several  commodities,  to  defray 
the  extraordinary  charges  of  the  government,  and  ap- 
plying the  same  to  several  uses,"  wherein  is  also  the 

.clause    annexed,  marked  D. 
58 


450  OPINIONS  OF  EMINENT  LAWYERS. 

In  pursuance  of  the  aforesaid  acts,  the  commissioners 
severally  entered  into  the  bonds  annexed,  marked  F.  C. 
G.  for  duly  complying  with  the  said  act. 

The  four  acts  above-mentioned,  being  transmitted  to 
Great  Britain,  were,  upon  their  being  taken  into  consid- 
eration, severally  rejected  by  his  Majesty. 

In  August,  1718,  an  assembly  was  called,  and  after  ten 
weeks  sitting,  were  prorogued  to  the  10th  of  November, 
without  answering  the  ends  of  their  being  called,  or  ap- 
propriating any  of  the  sums  in  the  commissioners'  hands, 
which,  upon  auditing  the  accounts,  appeared  to  be  up- 
wards of  £18,000. 

On  the  10th  of  November  the  assembly  met  again, 
according  to  the  prorogation  aforesaid,  and  sat  some 
days ;  but  the  Governor  finding,  by  the  temper  they 
were  in,  that  the  public  was  not  to  be  served,  proro- 
gued them  to  the  tenth  of  March,  and  has  since  dissolv- 
ed them. 

Though  it  appeared  to  the  assembly  that  the  treasury 
would  want,  by  the  25th  of  March,  by  the  receiver-geiu 
eral's  computation,  upwards  of  £9000  to  answer  the  de- 
mand upon  the  public,  yet  they  resolved  to  put  only 
£5800,  part  of  the  aforesaid  £18,000,  in  the  several 
commissioners'  hands. 

This  being  the  condition  of  the  government,  and  it 
being  likewise  uncertain  if  another  assembly  be  called, 
whether  tfre  majority  may  consist  of  such  persons  as 
will  be  for  supporting  the  government,  or  supplying  the 
treasury,  and  framing  the  laws  they  make  agreeable  to 
the  King's  instructions,  or  in  such  manner  as  they  can 
be  consented  to  by  the  council,  as  well  as  the  Governor, 
without  disregarding  his  Majesty's  instructions,  and 
rendering  themselves  entirely  useless  anc(  insignificant : 


OF  THE  COLONIAL  CONSTITUTIONS.  451 

It  is  proposed,  that  in  order  to  provide  for  the  support 
of  the  government,  aiid  the  peace  and  quiet  thereof,  that 
the  several  commissioners  be  required  to  pay  the  money 
in  their  hands  to  his  Majesty's  receiver-general. 

But  though  it  seems  highly  just  and  reasonable  that 
at  all  times  the  government  should  be  in  a  capacity  to 
pay  its  debts,  and  put  into  such  a  condition  as  that  it 
may  not  want  either  credit  or  money  to  enter  upon,  and 
go  into  any  proposition  for  the  security  of  the  trade  and 
interest  of  government ;  and  notwithstanding  it  is  noto- 
rious the  money  in  the  hands  of  the  commissioners  is 
greatly  wanted,  as  well  to  pay  the  debts  of  the  public, 
as  put  in  execution  some  service  for  the  public  good  of 
the  government,  and  that  it  is>  on  many  accounts,  appa- 
rently for  the  benefit  and  advantage  of  the  inhabitants, 
that  the  money  raised  upon  them  should  not  lie  useless 
in  the  hands  of  the  commissioners,  as  has  been  practised 
of  late  yearSj  or  in  the  manner  it  does,  and  has  done  for 
a  considerable  time,  whilst  many  poor  people  want  their 
money  due  from  the  public,  or  the  government  has  just 
demands  upon  it,  but  that  it  should  be  forthwith 
ordered  by  the  Governor  and  council  to  be  paid 
into  the  treasury  there^  to  be  issued  thence  for  the  pub- 
lic service  generally,  by  their  order  ;  yet  lest  it  may  be 
said  it  is  against  law  <o  order  the  money  as  aforesaid, 
ftnd  the  commissioners  should  refuse  to  pay  the  said 
money  by  such  an  authority,  it  is  thought  advisable  to 
ask  the  following  quceries  ; 

Qu(cre  1st.  Whether  the  bonds  are  of  force  rtfter  the 
repeal  of  the  said  acts^ 

2d.  If  the  bonds  and  condition^  are  ill  force j  notwith- 
standing the  rejecting  the  acts,  whether  they  are  satis- 
fied by  the  commissioners  having  accounted  to  the  as- 
sembly ? 


452  OPINIONS  OP  EMINENT  LAWYERS. 

3d.  What  shall  become  of  the  money,  raised  by  the 
acts,  in  the  commissioners'  hands,  the  appropriation 
and  uses  being  determined  by  the  rejecting  the  acts  ; 
and  how  may  the  commissioners  dispose  of  the  money, 
and  be  discharged  of  their  bonds,  if  in  force  ? 

4th.  Whether  the  Governor  may  not  direct  the  com- 
missioners to  pay  the  several  sums  or  balances  into  the 
treasury,  generally,  for  the  use  of  the  government,  free 
from  the  appropriation  of  the  acts  or  penalty  of  the 
bonds,  and  thereupon  order  the  bonds  to  be  vacated  1 

5th.  What  method  must  be  taken  to  oblige  the  com- 
missioners (upon  refusal)  to  pay  and  account  for  the 
money  as  aforesaid  ;  or  what  otherwise  may  be  done  for 
the  service  and  support  of  the  government  under  these 
circumstances  ? 

• 

My  Lords  ; 

Qapre(\.}  In  obedience  to  your  Lordships' commands 
I  have  considered  the  above-written  cjuceries]  and,  in 
answer  to  the  first  of  them,  I  am  of  opinion  that  the 
bonds  are  not  in  themselves  void,  inasmuch  as  non  est 
factum,  which  is  the  general  issue  in  all  actions  upon 
bonds,  cannot  be  pleaded  by  the  obliger ;  but  they  are 
voidable  as  to  such  part  of  the  condition  of  them,  by 
which  they  are  obliged  to  apply  the  monies  lying  in 
their  hands,  to  uses  directed  by  an  act  of  assembly  that 
is  not  in  force,  and,  therefore,  the  money  cannot  be  ap- 
plied accordingly. 

(2.)  As  to  the  second,  I  think  that  the  conditions  are 
satisfied  by  the  commissioners  accounting  to  the  as- 
sembly. % 

(3.)  As  to  the  third,  I  am  of  opinion,  that  the  money, 
resting  in  the  commissioners'  hands,  is  to  be  considered 
as  public  money,  and  (like  the  surplus,  unappropriated, 


OP  THE  COLONIAL  CONSTITUTIONS.         453 

of  a  fund  in  England)  is  subject  to  the  furture  disposi- 
tion of  the  general  assembly, 

(4.)  As  to  the  fourth,  I  am  likewise  of  opinion,  that 
since  the  act  by  which  the  commissioners  were  appoint- 
ed is  repealed,  that  the  Governor  may  direct  the  com- 
missioners to  pay  all  such  sums  of  money  as  they  might 
have  received  by  virtue  of  the  said  acts  before  it  was 
known  that  the  royal  assent  was  refused,  into  the  pub- 
lic treasury  ;  but  here  I  would  beg  leave  to  observe  to 
your  Lordships,  that  if  the  act  herewith  returned  to 
your  Lordships'  board,  entitled  "an  act  to  oblige  the  sev- 
eral inhabitants  of  this  island,  &c."  be  confirmed,  then 
this  power  of  the  Governor  would  be  eluded  ;  since, 
though  the  monies  would  be  in  the  hands  of  the  re- 
ceiver-general, yet  it  would  be  in  his  capacity  of  com- 
missioner, and  not  as  receiver.  But  if  it  is  not  confirm- 
ed, the  Governor  may  order  the  bonds  to  be  cancelled, 
since  the  obligers  have  done  all  that  they  possibly 
could  towards  towards  the  peformance  of  the  condition 
of  them. 

(5.)  As  to  the  last  qucere,  I  am  of  opinion,  that  the 
commissioners  being  appointed  by  acts  which  are  now 
to  be  considered  as  none,  and  it  being  certain  that  this 
is  public  money,  which,  by  law,  is  to  be  lodged  in  the 
public  treasury,  and  not  in  private  hands,  therefore  the 
commissioners  are  in  the  case  of  any  common  persons 
into  whose  hands  public  monies  may  chance  to  come 
without  any  particular  right  to  receive  the  same,  and 
may  be  prosecuted  and  sued  in  the  common  method  of 
their  exchequer,  &c.  for  the  recovery  of  the  money  in 
their  hands. 

RICH.  WEST. 
July  8, 1719. 


454  OPINIONS  OF  EMINENT  LAWYERS. 

(38.)  The  report  of  the  same  lawyer  on  the  Jamaica 
act  of  Assembly,  for  colonizing  the  island: 
To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations, 
My  Lords1 ; 

In  obedience  to  your  Lordships'  commands.  I  have 
perused  and  considered  an  act  of  general  assembly,  pass- 
ed in  the  island  of  Jamaica,  entitled  "an  act  to  oblige 
the  several  inhabitants  of  this  island  to  provide  them- 
selves  with  a  sufficient  number  of  white  people,  or  pay 
certain  sums  of  money  in  case  they  should  be  deficient, 
and  applying  the  same  to  several  uses."  As  to  the  gen- 
eral purview  of  which  act,  I  have  no  objection  to  its  be- 
ing passed  into  law  ;  but  I  must  beg  leave  to  observe  to 
your  Lordships,  that  by  a"  clause"  contained  therein,  it  is 
enacted  "That  all  vessels  trading  in  or  about  the  island, 
Which  shall  have  blacks  on  board  above  the  number  of 
one-fourth  part  of  the  hands  employed  in  the  manage- 
ment of  such  vessels,  shall  be  forfeited,-  with  all  its  tack- 
le/' I  submit  it  to  your  Lordships  to  determine  wheth- 
er these  Words  dre  not  too  general,  and  Whether  they 
should  not  have  been  restrained  to  such  vessels  as  are 
actually  owned  by  the  inhabitants  of  the  island  1  I 
have  been  but  very  little  conversant  in  matters  of  trade, 
but  I  have  been  informed  that  in  the  East  India  trade, 
the  commanders  of  ships,  by  reason  of  a  mortality 
among  their  sailors,  are  frequently  obliged  to  man  their 
ships  with  Indians,  blacks,  ot  such  other  men  as  they 
can  get,  to  assist  them  in  their  voyage  homeward. — 
Whether  such  accidents  may  not  also  happen  in  the 
West  India  trade,  especially  on  board  such  ships  as  trade 
from  the  coast  of  Guinea,  and  transport  blacks  into  that 
island,  as  may  necessitate  them  to  employ  more  blacks 


OF  THE  COLONIAL  CONSTITUTIONS.         455 

than  a  fourth  part  of  the  number  of  their  crew,  I  cannot 
say ;  however,  as  your  Lordships  are  the  proper  judges 
whether  the  inhabitants  of  that  island  are  of  a  disposi- 
tion to  take  any  advantage  of  this  nature,  I  thought  it 
proper  to  observe  this  particular,  which,  if  not  pertinent, 
I  hope  will  be  excused,  that  your  Lordships  may  con- 
sider how  far  this  clause  may  be  proper  to  be  passed. 

There  is  also  a  clause  in  this  act,  by  which  the  es- 
tates of  all  persons,  not  resident  in  the  island,  are  higher 
taxed  than  those  of  persons  who  dwell  upon  the  spot. 
I  submit  it  to  your  Lordships  how  far  this  may  be 
prejudicial  to  persons  residing  in  Great  Britain,  and  in- 
consistent with  that  equality  which  ought  to  be  observ- 
ed in  the  levying  of  public  taxes. 
I  beg  leave  further  to  observe  to  your  Lordships,  that 
the  general  assembly,  reflecting  upon  the  reasons  for 
which  their  other  acts  were  repealed,  have,  indeed,  so 
far  complied  with  his  Majesty's  instructions  as  to  make 
the  monies  to  be  collected  by  virtue  of  this  act,  payable 
into  the  hands  of  the  person  who  is  to  be  receiver-gene* 
ral  of  the  island  ]  but  then  with  a  view,  doubtless,  to 
continue  their  claim  of  nominating  commissioners  for 
the  receipt  of  public  money,  they  do  not  make  the 
money  payable  to  him  in  the  capacity  of  receiver-gene- 
ral, but  as  your  Lordships  will  observe,  they  appoint  the 
person  who  is  employed  by  the  King  as  his  receiver- 
general,  to  be  their  commissioner,  for  the  receipt  of  this 
money  :  and  consequently,  not  content  with  that  obli-= 
gation  which  every  receiver-general  is,  ex  officio,  under, 
faithfully  to  account  for  the  public  money,  they  enact 
"that  he  shall  give  an  additional  security  for  his  fidelity, 
by  entering  into  bond,  and  taking  a  fresh  oath  for  the 
faithful  discharge  of  a  distinct  office,  which  they 


456  OPINIONS  OF  EMINENT  LAWYERS. 

judge  proper  to  bestow  upon   him." 

Your  Lordships  will  permit  me  further  to  observe, 
that  the  assembly,  anticipating  any  resolutions  which 
may  be  thought  proper  to  be  taken  upon  those  queries, 
which  your  Lordships  have  been  pleased  to  send  to  me 
concerning  the  monies  collected  by  virtue  of  the  repeal- 
ed acts,  have  inserted  into  this  act  a  clause  to  direct 
the  payments  of  the  monies  remaing  in  the  hands  of  the 
former  commissioners,  unto  the  present  commissioner, 
the  receiver-general,  who  is  to  account  for  that  money 
in  the  same  manner  as  he  is  for  what  he  shall  receive  in 
consequence  of  this  act. 

I  have  also  perused  an  act  for  the  encouragement  of 
voluntary  parties,  to  suppress  rebellious  and  run-away 
negroes,  and  observing  only  that  the  parish  of  Westmor- 
land is  excepted,  I  know  not  for  what  reason,  from  any 
benefits  to  be  derived  from  that  act,  I  have  no  objection 

to  this  being  passed  into  a  law. 

RICH.  WEST. 
July  8,  1719. 

(39.)  1  lie  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Murray  and  Lloyd,  on  four  acts  of  the  Jamaica 
Assembly,  which,  after  hearing  parties,  they  deemed  of 
such  a  nature,  as  the  Governor  ought  not,  according  to 
his  instructions,  to  have  passed. 
To  the  Right  Honorable  the  Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  commands,  signified 
to  us  by  Mr.  Pownall,  in  his  letter  of  the  30th  of  Octo- 
ber last,  transmitting  to  us  four  acts  lately  passed  in  the 
island  Jamaica  ;  together  with  an  address  of  the  coun- 
cil and  assembly  to  his  Majesty  thereupon,  referred  to 


OF  THE  COLONIAL  CONSTITUTIONS.        457 

your  Lordships  by  order  of  the  Lords  of  the  committee 
of  council  for  plantation  affairs,  the  10th  of  September 
last  ;  and  likewise  extracts  of  all  such  parts  of  his  Maj- 
esty's commission  and  instructions  to  his  Governor  of 
Jamaica,  as  relate  to  passing  of  laws,  all  which  papers 
are  herewith  returned  :"  and  as  those  acts  appeared  to 
your  Lordships  to  be  of  great  importance,  and  might 
greatly  affect  the  welfare  and  interest  of  that  island,  and 
the  rights  and  properties  of  his  Majesty's  subjects 
residing  there,  desiring  our  opinion  upon  them,  in 
point  of  law,  as  soon  as  might  be,  the  titles  of  which  acts 
are  as  follows,  viz :  "an  act  for  removing  the  several 
laws,  records,  books,  papers,  and  writings,  belonging  to 
the  several  offices  of  secretary  of  this  island,  clerk  of  the 
supreme  court  of  judicature,  clerk  of  the  crown,  clerk  of 
the  patents  and  register  in  chancery,  and  provost-mar- 
shal, from  the  town  of  St.  Jago  de  la  Vega,  to  the  town 
of  Kingston  ;  and  to  oblige  the  several  officers  to  hold 
and  keep  their  respective  offices,  with  the  respective  rec- 
ords and  papers,  in  the  said  town  of  Kingston  ;  and  also 
for  holding  the  supreme  court  of  judicature  in  the  said 
town  of  Kingston  for  the  future  ;"  "an  act  to  appoint 
commissioners  to  erect  and  build  a  house  and  offices  in 
the  town  of  Kingston,  for  the  residence  of  the  Governor 
of  this  island,  and  to  empower  the  justices  and  vestry  to 
assess  and  levy  a  tax  upon  the  proprietors  of  houses  and 
lands,  inhabitants  and  traders  in  the  said  town  ;"  "an 
act,  appointing  commissioners  to  inquire  into,  and  state 
what  losses  some  of  the  freeholders  of  messuages  and 
tenements  in  the  town  of  St.  Jago  de  la  Vega,  and  the 
lessees  of  such  freeholders,  may  sustain  in  the  value  of 
their  said  freeholds  or  leased  premises,  by  the  removal 

of  the  supreme  court  of  judicature,   and   of  the  public 
69 


458  OPINIONS    OF     EMINENT     LAWYERS. 

records,  from  the  said  town  to  the  town  of  Kingston  ;•" 
"an  act  to  enlarge  the  jurisdiction  of  the  several  inferior 
courts  of  common  pleas  :"  we  have  taken  the  said  four 
acts  into  consideration,  and  have  been  attended  by  coun- 
sel for  inhabitants,  who  desired  to  be  heard  in  opposition 
to  the  said  acts  ;  and  also  by  Mr.  Sharpe,  as-  agent  for 
the  said  island,  and  counsel  in  support  thereof,  and  we 
are  of  opinion  that  they  are  of  such  a  nature,,  as  the 
Governor,  by  his  instructions,  ought  not  to  have  assented 
to,  in  the  manner  in  which  they  are  passed. 

W.    MURRAY. 
Dec.  27,  1755.  RICHD.  LLOYD. 

(40.)  The  opinion  of  t/ie  Attorney  and  Solicitor-Gen- 
eral, Henley  and  Yorke,  that  circuit  courts  in  Jamaica 
conld  not  be  established,  in  the  proposed  mode,  but  by  the 
legislature  of  the  island,,  w  by  aji  act  of  parliament. 

Case. — By  laws  heretofore  passed  in  the  island  of  Ja- 
maica, and  confirmed  by  the  Crown  (a  reference  to 
which  laws  is  hereunto  annexed),  the-  masters  of  all 
ships  and  vessels  are  obliged,  before  they  can  trade  or 
land  any  goods,  to  wait  upon  the  Governor,  and  give  se- 
curity in  the  secretary's  office  at  St.  Jago  de  la  Vega, 
not  to  carry  any  person  off  the  island  without  the  Gov- 
ernor's ticket,  nor  depart  themselves  without  the  Gov- 
ernor's leave ;  and  the  receiver-general  and  naval  officer 
are  obliged  to  hold  and  keep  their  offices  at  Kingston.. 

It  is  represented  by  the  merchants,  and  others,  tra- 
ding to  and  residing  in  the  island  of  Jamaica,  that  the 
trade  and  commerce  of  that  island  is  greatly  obstructed, 
and  merchants  and  masters  of  ships  exposed  to  great 
risk  and  expense,  from  being  obliged,  by  the  above-men- 
tioned laws,  to  wait  upon  the  Governor  at  St.  Jago  de 


OP  THE  COLONIAL  CONSTITUTIONS.  459 

la  Vega.)  before  they  can  unload  their  ships-,  and  from 
masters  of  vessels  taking  in  cargoes  at  the  out-ports,  be- 
ing obliged  to  come  to  Kingston  to  clear  out  with  the 
proper  officers. 

It  is  apprehended  that  the  opening  ports  of  entry  and 
clearance  of  ships  in  different  parts  of  the  island,  and  di- 
recting the  receiver-general-,  secretary,  naval  officer,  and 
•  collector  of  the  customs,  to  keep  offices  therein-,  will 
remedy  these  inconveniences  and  grievances  com- 
plained of. 

Queers. — What  will  be  the  legal  and  proper  method 
of  carrying  such  measure  into  execution  consistent  with 
the  above-mentioned  laws  of  the  island,  arid  the  acts  of 
parliament  passed  for  regulating  the  plantation  trade, 
particularly  those  of  the  15th  and  25th  of  Charles  II. 
chap.  7,  and  7th  and  8th  of  William  III.  chap.  22  ? 

Upon  the  consideration  of  the  several  laws  above-men- 
tioned and  referred  to,  we  are  of  opinion,  that  his  Maj- 
esty may  open  ports  of  entry  and  clearance  of  ships,  in 
such  different  parts  of  the  island  as  he  thinks  proper, 
and  may  direct  the  proper  officers  to  attend  for  the  busi- 
ness of  such  ports,  and  to  take  security  there,  which, 
we  conceive,  will  remove  the  inconveniences  and  griev- 
ances complained  of. 

Case.— By  laws  heretofore  passed  in  the  island  of  Ja- 
maica, and  confirmed  by  the  Crown  (a  reference  to 
which  laws  is  hereunto  annexed,)  the  supreme  court  of 
judicature,  and  most  of  the  offices  of  record,  are  direct- 
ed to  be  held  and  kept  at  the  town  of  St.  Jago  de  la 
Vega. 

It  is  represented  by  the  merchants,  and  others,  trad- 
ing to  and  residing  in  the  island  of  Jamaica,  that  the 
trade  and  commerce  of  that  island  is  greatly  obstructed, 


460  OPINIONS  OiP  EMINENT  LAWYERS. 

and  merchants  and  masters  of  ships  exposed  to  great 
risk  and  expense,  from  being  obliged,  by  the  above- 
mentioned  laws,  to  attend  the  supreme  court  there, 
either  as  prosecutors  in  suits  which  they  may  have  de- 
pending therein,  or  as  jurors. 

It  is  apprehended  that  the  establishing  of  circuit 
courts  in  the  several  parishes  and  districts  of  the  island, 
will  remedy  these  inconveniences  and  grievances  com- 
plained of. 

Q&re. — What  will  be  the  legal  and  proper  method  of 
carrying  such  measure  into  execution,  and  how  far  is 
the  law  passed  in  the  island  of  Jamaica,  on  the  14th  of 
December,  1751,  entitled  "an  act  appointing  commis- 
sioners of  nisi  prius,  and  enlarging  the  jurisdiction  of 
justices  of  the  peace  in  matters  of  debt,"  a  copy  of  which 
law  is  hereunto  annexed,  adapted  to  the  remedy  pro- 
posed ?  We  are  of  opinion  that  circuit  courts  cannot  be 
established  in  the  manner  proposed,  but  by  an  act  of 
the  legislature  in  Jamaica,  or  by  the  parliament  of 
Great  Britain ;  and  we  are  also  of  opinion,  that  the  act 
of  the  14th  of  December,  1751,  a  copy  of  which  (inter 
alia}  was  sent  us,  and  is  hereto  annexed  and  returned, 
is  not  adapted  to  the  intended  purpose,  but  is  very  im- 
perfect, undigested  and  defective:  but  to  form  a  plan 
for  such  a  law,  the  divisions  of  the  intended  counties 
must  be  settled  by  persons  well  acquainted  with  that 
island,  as  a  necessary  foundation  to  proceed  upon. 

ROBT.  HENLEY. 
May  18,  1757.  C.  YORKE. 

(41.)  The  opinion  of  the  Attorney  and  Solicitor- 
General^  Ryder  and  Murray,  how  far  an  act  of  Assem- 
bly ought  to  be  repealed^  which  would  endanger  the  rights 


OK  THE  COLONIAL  CONSTITUTIONS.          461 

of  purchaser*  under  t'2,  when  a  long  acquiescence  has  oc- 
curred. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  desire,  signified  to  us 
by  Mr.  Pownall's  letter  of  the  25th  of  June  last,  in- 
closing the  copy  of  an  act  passed  in  the  island  of  Bar- 
badoes  in  the  year  1713,  entitled  "  an  act  relating  to  the 
spring,  or  rivulet,  called  the  Three  Houses  Spring,  in 
the  parish  of  St.  Philips,"  which  act  your  Lordships  are 
pleased  to  desire  opinion  upon  in  point  of  law :  we  have 
taken  the  said  act  into  consideration,  and  the  agent  of 
Mr.  Braithwaite,  desiring  to  be  heard  against  the  act, 
we  have  been  attended  by  his  counsel  and  agent,  and 
also  by  the  counsel  and  agent  in  support  of  it. 

Upon  hearing  what  was  offered  on  both  sides,  we  are 
of  opinion  that  there  appears  no  objection  to  the  act  in 
point  of  law ;  and,  considering  the  long  acquiescence 
under  it,  and  the  danger  of  repealing  an  act  by  which 
purchasers  on  the  credit  of  it  may  be  greatly  affected, 
we  think  it  may  be  advisable  to  put  an  end  to  any  fears 
of  that  kind,  by  a  confirmation. 

D.  RYDER. 
July  25,  1753.  W.    MURRAY. 

VII.  Of  the  colonial  judicatories  and  their  proceed- 
ings :  their  jurisdictions  emanate  from  the  King,  under 
the  various  modifications  of  the  several  acts  of  assembly. 

(1.)  The  several  remarks  of  the  Lord  Chief  Justice, 
Sir  Thortuts  Parker,  and  Sir  Peter  King,  on  the  draught 
of  a  Utter  from  the  Board  of  Trade  to  the  Earl  of  Sun- 


462  OPINIONS    OP  EMINENT    LAWYERS. 

derland,  on  the  judicial  proceedings  in  Bermudas* 
My  Lord ; 

In  obedience  to  her  Majesty's  commands,  signified  to 
us  by  your  Lordship's  letter  of  the  8th  of  December  last, 
upon  a  petition  and  remonstrance  to  her  Majesty  from 
the  council,  assembly,  judges,  justices  of  the  peace,  cler- 
gy, officers  both  civil  and  military,  and  other,  the  inhab- 
itants of  the  Bermuda  islands,  praying  that  Mr.  Jones 
may  not  be  restored  to  his  offices  in  the  said  islands,  un- 
til the  petitioners,  by  their  agents,  be  heard  to  the  arti- 
cles formerly  exhibited  by  the  assembly  of  that  island 
against  the  said  Jones ;  and  directing  us  to  hear  them 
accordingly :  we  have,  accordingly,  been  attended  by  the 
petitioners'  agent,  and  Mr.  Jones,  with  their  counsel ; 
and  have  heard  the  petitioners'  counsel  to  the  said  ar- 
ticles. 

The  proofs  which  they  offered  to  several  of  the  said 
articles,  consisted*  chiefly  of  presentments  and  indict- 
ments from  the  grand  jury,  at  an  assize  held  at  Bermu- 
da, against  the  said  Jones ;  and  of  judgments  of  the 
courts  upon  the  said  indictments* 

The  counsel  for  the  said  Jones  offeredt  to  give  rea- 
sons why  those  indictments  and  judgments  ought  not  to 
be  received  as  evidence  against  Jones.  To  which  the 
counsel  for  the  petitioners  objected,  alleging  thatj  ac- 
cording to  law,  no  averment  against  the  record  of  a 

Remarks  of  Sir  Thomas  Parker,   Chief  Justice. 

*Were  judgments  and  conviclions,  upon  record,  for  the  crimes  in  those  articles 
charged  1  (The  presentments  are  nothing  ;  we  rely  on  the  convictions  ) 

^Notwithstanding,  to  prove  by  affidavits,  the  innocence  of  Jones  in  those  par- 
ticulars. (The  judgments  were  read  in  evidence,  and  not  objected  to ;  but  Jones' 
counsel,  when  they  came  upon  the  defence,  went  to  contest  the  truth  of  the  matter 
of  them.) 

JThese  convictions,  upon  record,  before  a  court  having  jurisdiction,  ought  not  to 


OP  THE  COLONIAL    CONSTITUTIONS.  463 

court  that  has  the  judicial  cognizance  of  the  case,  ought 
to  be  admitted,  whilst  the  said  record  remains  in  force  ; 
that  Mr.  Jones,  if  he  found  himself  aggrieved,  might 
have  proceeded  in  the  regular  way,  by  writ  of  error,  to 
have  had  the  said  judgments  reversed;  and  till  that 
was  done,  the  said  judgments  ought  to  be  received  as 
full  evidence.  To  which  Mr.  Jones'  counsel  replied* 
that  he  had  several  times  applied  to  the  Governor  for  a 
writ  of  error,  but  was  denied  it ;  and  that  if  he  was  not 
allowed  to  invalidate  the  evidence  upon  which  the 
aforesaid  judgments  were  grounded,  he  had  no  way  to 
clear  himself  from  the  crimes  objected  against  him  by 
those  articles.  The  counsel  on  the  other  sidet  observed, 
that  Jones  having  petitioned  that  a  writ  of  error  might 

Remarks  of  Sir  Thomas  Parker,  Chief  Justice. 

be  averred  against,  but  are  conclusive  proof  of  his  guilt,  they  standing  unreversed 
by  writ  of  error,  and  unimpeached  by  any  complaint  against  the  manner  of  obtain- 
ing them. 

*That  as  to  the  judgments  not  being  reversed,  the  reason  was,  because  the  Gov- 
ernor refused  him  writs  of  error,  which  ought  not  to  turn  to  his  disadvantage  ;  and 
to  prove  it,  they  produced  a  copy  of  his  petition  presented  to  the  Governor,  pray- 
ing a  writ  of  error,  and  proved  the  Governor  refused  it,  upon  presenting  the  peti- 
tion, and  upon  several  applications  for  the  same  purpose  after.  And  as  to  the  man- 
ner of  obtaining  the  judgments,  not  being  impeached,  he  was  ready  now  by  affida- 
vits to  shew  one  of  them,  which  was  by  verdict  to  be  obtained  by  great  partiality 
and  refusal  to  hear  his  evidence ;  and  that  was  the  reason  he  made  no  defence  to 
the  rest,  urging  likewise  other  matter. 

fObserved,  that  the  petition  was  not  till  May,  1706,  about  three  months  before 
Jones  came  away,  and  they  owned  the  Governor  had  refused  to  grant  the  writ  of 
error,  prayed  in  Jones'  petition  to  him,  because  they  observed,  he  could  not  grant 
it ;  for  the  petition  did  not  pray  a  writ  of  error,  returnable  before  the  Governor  in 
council,  where  only  a  writ  of  error,  in  thM  island,  lies.;  nor  prayed  a  writ  of  error 
generally,  but  prayed  a  special  writ  of  error,  returnable  in  the  assembly,  urging 
reason  in  his  petition,  why  such  writ  of  error  should  be  granted.  And  his  appli- 
cations to  the  Governor,  after,  were,  by  the  affidavit  produced  by  Jones,  expressly 
proved  to  be*  for  the  same  writ  of  error ;  that,  therefore,  this  was  no  excuse  for  not 
reversing  the  judgments,  but  rather  a  fresh  instance  of  his  slighting  the  Governor 
and  council  there,  whose  judgment  he  thus  endeavored  to  evade  ;  writs  of  error,  by 
the  constitution,  certainly.  (This  stated  jis  if  two  distinct  things  were  asked  by 
the  petitioner  :  First  a  writ  of  error;  Second,  a  hearing  before  assembly.) 


464  OPINIONS    OF  EMINENT  LAWYERS. 

be  granted  him,  and  that  the  trial  of  his  case  might  be 
heard  before  the  general  assembly,  the  Governor  could 
not  allow  thereof,  as  being  a  matter  appertaining  to  the 
cognizance  of  the  Governor  and  council,  and  not  of  the 
assembly,  who,  alone,  by  the  constitution,  have  not  a 
power  to  reverse  the  judgments  of  inferior  courts. 

But*  the  counsel  for  Mr.  Jones,  on  the  other  side,  ad- 
hering to  their  opinion,  we  desire  your  Lordship  will 
please  to  lay  this  matter  before  her  Majesty,  that  we 
may  know  her  Majesty's  pleasure,  whether  we  are  to 
hear  the  said  Jones'  counsel  against  the  said  judgments, 
or  whether  they  are  to  b.e  accepted  as  good  evidence 
against  him  concerning  those  articles ;  and  in  that  case, 
whether  her  Majesty  will  not  be  pleased  to  direct  that 
writs  of  error  be  granted  him>  to  the  end  he  may  pro- 
ceed in  the  regular  way  for  endeavoring  the  reversal  of 
the  said  judgments, 

Whitehall,  May  12,  1709.  1\  PARKER. 

My  Lord; 

In  obedience  to  her  Majesty's  commands,  signified  to 
us  by  your  Lordship's  letter  of  the  8th  of  December  last, 

Remarks  of  Sir  Thomas  Parfcer,  Chief  Justice. 

*That  as  to  the  pretences  now  started  of  partiality  in  the  trial,  they  ought  not  to 
be  taken  notice  of,  because  the  agents  for  the  island  are  not,  nor  could  be,  prepared 
to  justify  judicial  proceedings,  against  which,  to  this  day,  there  had  never  been  any 
objections  made.  But,  that  if  Mr.  Jones  had  just  cause  of  exception  on  that  Head 
it  had  been  proper  to  have  laid  it  before  her  Majesty,  that  there  might  have  been 
an  opportunity  of  giving  an  answer  thereto ,  which  yet  he  has  been  so  far  from 
doing,  that,  though  upon  a  petition  by  himself  only,  to  her  Majesty,  he  has  exhibi- 
ted near  one  hundred  articles  against  the  governor,  judges,  justices,  and  others  in 
the  island,  some  of  them  for  matters  of  far  less  moment,  and  concerning  proceedings 
against  others,  wherein  himself  was  unconcerned,  yet  he  has  not  one  article  that  in 
the  least  touches  upon  these  judgments,  or  the  proceedings  in  order  to  them ;  and, 
therefore,  ought  not  now  to  be  admitted  to  set  us  these  pretences,  thus  to  invalidate 
the  proceedings  of  the  supreme  ordinary  court  of  justice  in  the  island,  and  arraign 
the  judges,  who  know  nothing  of  the  charge,  nor  have  an  opportunity  of  making  a 


OF  THE  COLONIAL    CONSTITUTIONS.  465 

upon  a  petition  and  remonstrance  to  her  Majesty  from 
the  council,  assembly,  judges,  justices  of  the  peace,  cler- 
gy, officers  both  civil  and  military,  and  other,  the  inhab- 
tants  of  the  Bermuda  islands,  praying  that  Mr.  Jones 
may  not  be  returned  to  his  offices  in  the  said  islands, 
directing  us  to  hear  the  petitioners  by  their  agents,  to 
the  articles  formerly  exhibited  by  the  assembly  of  that 
island  against  the  said  Jones  :  we  have  accordingly  been 
attended  by  the  petitioners'  agents,  and  Mr.  Jones,  with 
their  counsel,  and  have  heard  the  petitioners'  counsel  to 
the  said  articles. 

The  proofs  which  they  offered  to  several  of  the  said 
articles  consisted  chiefly  of  presentments  and  indict- 
ments from  the  grand  jury,  at  an  assize  held  at  Bermu- 
da, against  the  said  Jones,  and  of  judgments  of  the 
courts  upon  the  said  indictments. 

The  counsel  for  the  said  Jones  offered*  to  give  rea- 
sons why  those  indictments  and  judgments  ought  not 
to  be  received  as  evidences  against  Jones.  To  which 
the  counsel  for  the  petitioners  objected,  alleging,  that, 
according  to  law,  no  averment  against  the  record  of  a 
court  that  has  the  judicial  cognizance  of  the  case,  ought 
to  be  admitted  whilst  the  said  record  remains  in  force  ;t 
that  Mr.  Jones,  if  he  found  himself  aggrieved,  might 
have  proceeded  in  the  regular  way,  by  writ  of  error, 

Remarks  of  Sir  Peter  King,  Chief  Justice. 

defence.  (We  hope  the  board  will  not  interpose  in  this,  but  go  on  now  to  hear  the 
matter,  and  not  assist  Jones  to  obtain  such  a  delay,  especially  not  being  a  matter 
referred  to  the  consideration  of  the  board,  nor  (that  we  observed.)  asked  by  Jones 
himself.) 

*Offered  to-  disprove  by  affidavits  the  truth  'and  verity  of  the  facts  contained  in 
the  said  indictments  and  judgments  thereon. 

fThat  the  convictions  and  judgments  on  the  indictments,  whilst  they  remain  un- 
reversed,  are  conclusive  proofs  of  the  verity  of  the  facts  against  the  party  so  indict- 
ed and  convicted. 

60 


466  OPINIONS  OF  EMINENT  LAWYERS. 

to  have  had  the  said  judgments  reversed  ;  and  till  that 
was  done,  the  said  judgments  ought  to  be  received  as 
full  evidence.*  To  which  Mr.  Jones'  counsel  replied, 
that  he  had  several  times  applied  to  the  Governor  for  a 
writ  of  error,  but  was  denied  it ;  and  that  if  he  was  not 
allowed  to  invalidate  the  evidence  upon  which  the  afore- 
said judgments  were  grounded,  he  had  no  way.  to  clear 
himself  from  the  crimes  objected  against  him  by  those 
articles. 

But  the  counsel  on  the  other  side  observed,  that 
Jones,  having  petitioned  that  a  writ  of  error  might  be 
granted  him,t  and  that  the  trial  of  his  case  might  be 
heard  before  the  general  assembly,  the  Governor  could 
not  allow  thereof,  as  being  a  matter  appertaining  to  the 
cognizance  of  the  Governor  and  council,  and  not  of  the 
assembly,  who  alone,  by  the  constitution,  have  not  a 
power  to  reverse  the  judgments  of  inferior  courts.  But 
the  counsel  on  the  other  side  adhering  to  their  opinion, 
we  desire  your  Lordships  will  please  to  lay  this  matter 
before  her  Majesty,  that  we  may  know  her  Majesty's 
pleasure,  whether  we  are  to  hear  the  said  Jones'  coun- 
sel against  the  said  judgments,  or  whether  they  are  to 
be  attested  as  good  evidence  against  him  concerning 
those  articles;  and  in  that  case,  whether  her  Majesty 
will  not  be  pleased  to  direct^  that  writs  of  error  be 
granted  him,  to  the  end  he  may  proceed  in  the  regular 

Remarks  of  Sir  Peter  King,  Chief  Justice. 

*Especially  seeing,  in  this  case,  he  never  made  any  proper  and  legal  step  to  get 
the  said  judgments  reversed. 

fThat  Jones  never  petitioned  for  a  legal  writ  of  error  before  the  Governor  and 
council,  but  before  the  Governor  and  assembly,  which  writ  of  error  doth  not,  by 
the  law  or  constitution  of  Bermudas,  lie  before  them. 

\Q<zre. — Whether  any  occasion  to  pray  this  direction  from  her  Majesty. 


OF  THE  COLONIAL  CONSTITUTIONS.  467 

way  for  endeavoring  the  reversal  of  the  said  judgments. 
Whitehall,  May,  1709.  P.  KING. 

(2.)  2he  opinion  of  the  Attorney  General,  Norihey,  on 
the  general  policy  of  the  colonial  courts. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  order  of  reference, 
signified  to  me  by  Mr.  Popple,  by  his  letter  dated  the 
2d  day  of  November  last,  I  have  perused  and  consider- 
ed of  an  act  passed  at  Barbadoes,  the  21st  of  March, 
1709,  entitled  "  an  act  to  render  more  effectual  certain 
legacies  given  and  bequeathed  by  Captain  Williams,  de- 
ceased, to  the  parish  of  Christ  Church,  within  this 
island,"  and  am  humbly  of  opinion,  that  the  same  is  not 
fit  to  be  confirmed  by  her  Majesty,  for  that  the  occasion 
of  passing  the  bill  being  to  capacitate  the  churchwar- 
dens of  the  parish  of  Christ  Church,  in  Barbadoes,  to 
take  an  assignment  of  lands,  which  they  could  not  take 
without  the  help  of  an  act,  not  being  a  corporation,  and 
for  which  purpose  the  act  was  reasonable,  this  act  does 
enact  that  purchasers  under  the  churchwardens,  of  the 
land  so  to  be  conveyed  to  them  by  theserj't  of  arms  who 
had  seized  the  lands  by  a  decree  of  the  court  of  chancery 
there,  shall  hold  and  enjoy  the  same  against  the  heirs, 
executors,  administrators,  and  assigns  of  Captain  John 
Williams,  who,  by  the  act  is  stated  to  have  devised  a 
charity  of  £60  to  that  parish,  and  the  churchwardens 
whereof  had  obtained  a  decree  against  Richard  Williams, 
his  administrator,  with  his  will  annexed,  for  payment 
of  the  same  :  on  which  decree,  lands  of  inheritance  of 


468  OPINIONS    OP    EMINENT    LAWYERS. 

the  said  John  Williams  had  been  seized,  which  I  take  to 
be  unjust,  for  that  it  does  not  appear  that  the  testator 
had  charged  his  real  estate  with  that  legacy,  and  for 
that  the  heir  of  the  testator  was  not  made  a  party  in 
that  suit,  and  has  a  right  to  controvert  that  matter  ;  and 
also  for  that  the  purchasers,  under  the  churchwardens, 
are  enacted  to  hold  and  enjoy,  against  the  assigns  of 
John  Williams,  deceased,  which  will  make  void  the 
mortgages,  conveyances,  and  settlements,  made  by  the 
testator  in  his  lifetime. 

January  18,  1711.  EDW.  NORTHEY. 

(3.)  Ilie  opinion  of  the  Attorney  and  Solicitor  Gener- 
al, Yorke  and  Wearg,  on  the  establishment  of  a  court  of 
criminal  jurisdiction  in  the  Leeivard  Islands. 

William  White,  an  inhabitant  of  the  island  of  Spanish 
Town,  which  is  one  of  the  Leeward  Islands,  Mils  one 
Gary  there  ;  for  which  being  apprehended  by  the  Gov- 
ernor of  that  island,  he,  the  said  White,  petitioned  the 
chief  Governor  of  all  the  Leeicard  Islands  (by  whom  all 
commissions  oj  oyer  and  terminer,  within  that  govern- 
ment, are  issued)  for  a  speedy  trial  in  Spanish  Town 
aforesaid,  or  if  that  could  not  be,  for  want  of  proper  of- 
ficers in  that  island,  that  he  might  be  sent  for  to  St. 
Christopher's,  and  tried  there. 

Spanish  Town  is  an  island  where  no  courts  or  officers 
are  established  for  the  administration  of  justice. 

The  chief  Governor,  therefore,  caused  the  said  White 
to  be  brought  up  to  St.  Christopher's,  where  he  was  ex- 
amined before  four  of  his  Majesty's  council  there,  and 
they  thinking  there  was  great  cause  to  suspect  that 
White  was  guilty  of  the  said  murder,  the  said  chief 
Governor  awarded  a  special  commission  of  oyer  and  ter- 


OF  THE  COLONIAL  CONSTITUTIONS.         469 

miner,  for  liis  trial  in  St.  Christopher's,  and  Wldte  lias 
since  been  convicted  of  the  murder  of  Gary,  before  those 
commissioners,  by  a  jury  of  St.  C/irislop/ier's,  and  receiv- 
ed sentence  of  death  thereupon. 

The  statute,  33d  Henry  VIII.  reciting  that  persons, 
upon  vehement  suspicion  of  treasons  or  murder,  being 
many  times  sent  for  to  divers  shires  of  the  realm,  and 
other  the  Kings'  Dominions,  to  be  examined  before  the 
Kings  council  upon  their  offences,  and  also  setting  forth 
the  charge  of  the  Crown,  and  inconv  eniency  of  reman- 
ding such  suspected  persons  after  their  examination, 
back  to  the  places  where  their  offences  were  committed, 
for  trial,  &c.,  enacts,  that  if  any  person  being  examined 
by  the  King's  council,  or  three  of  them,  upon  any  man- 
ner of  treasons,  misprisions  of  treasons,  or  murders,  do 
confess  any  such  offences,  or  that  the  said  council,  or 
three  of  them,  upon  such  examination,  shall  think  any 
persons  so  examined  to  be  vehemently  suspected  of  any 
treason,  misprison  of  treason,  or  murder,  that  then,  in 
every  such  case,  by  the  King's  commandment,  his  Maj- 
esty's commission  of  oyer  and  terminer,  under  his  great 
seal,  shall  be  made  by  the  chancellor  of  England  to  such 
persons,  and  into  such  shires,  as  shall  be  named  and 
appointed  by  the  King,  for  the  speed}^  trial,  conviction, 
or  deliverance,  of  such  offenders ;  and  that,  in  such  case, 
no  challenge  for  the  shire  or  hundred  shall  be  allowed : 
which  statute,  though  it  be  repealed,  by  the  1st  and  2d 
P.  and  M.  as  to  treason  ;  yet,  it  is  apprehended,  it  is  not 
as  to  murder. 

Qacere  1. — Does  not  this  statute  make  such  an  altera- 
tion in  the  common  law,  and  so  enlarge  the  King's  pre- 
rogative as  to  trials  in  murder,  as  well  in  his  colonies  as 
in  his  kingdom  of  England,  that  he  may,  if  he  thinks 


470  OPINIONS  OP  EMINENT  LAWYERS. 

fit,  appoint  any  man  (charged  with  that  offence  in  any 
of  his  colonies,  and  examined  as  the  act  directs)  to  be 
tried  in  any  place  there,  other  than  the  place  or  island, 
where  the  offence  was  committed  1 

Quaere  ',<:. — If  such  power  be  in  the  King,  can  that 
power  be  executed  by  his  Governor  in  St.  Christopher's, 
who  is  expressly  empowered  by  his  Majesty's  commis- 
sion, to  erect  courts  of  justice,  and  issue  commissions  of 
oyer  and  terminer,  within  this  government,  as  he  shall 
think  fit ;  and  can  a  commission,  in  the  King's  name, 
under  the  seal  of  the  Leeward  Islands,  and  an  examina- 
tion before  the  King's  council  there,  (who  are  actually 
nominated  by  the  King,  and  by  his  instructions,  called 
his  council,)  be  taken  to  be  such  a  commission  and  ex- 
amination as  is  meant  by,  or  comprehended  within,  the 
words  or  design  of  this  act  ? 

Qucere  3. — If  this  commission,  in  this  case,  be  not  war- 
ranted by  the  statute,  it  is  not,  nevertheless,  warranted 
by  the  Kng*s  prerogative  in  his  colonies,  and  well  sup- 
ported by  the  powers  supra,  which  his  Majesty,  by  his 
commission,  has  given  to  the  Governor  of  St.  Christo- 
pher's ,  and,  upon  the  whole  matter,  is  the  trial  and 
conviction  of  White  legal  or  not  ? 

To  quart  1. — We  are  of  opinion,  that  the  statute  of 
33  Henry  VIII.  cap.  23.  does  not  extend  to  the  planta- 
tions, and  that  there  is  no  foundation  from  that  act  of 
parliament,  to  grant  special  commissions  of  oyer  and 
terminer,  for  trial  of  offences  arising  out  of  the  colony 
within  which  such  commission  is  granted. 

To  quaere  2. — This  question  depends  upon  the  for- 
mer, and  is  answered  under  that. 

To  queer  c  3. — The  legality  of  the  commission  upon 
which  White  was  tried,  will  depend  upon  the  constitu- 


OF  THE  COLONIAL  CONSTITUTIONS.  471 

tion  of  the  government  of  the  Leeward  Islands,  and  the 
jurisdiction  of  the  courts  of  judicature  in  St.  Christo- 
pher's, which  is  not  sufficiently  stated2  so  as  to  enable  us 
to  give  any  certain  opinion  thereupon.  If  the  island  of 
Spanish  Town  is  dependent,  as  to  its  government,  on 
St.  Christopher's,  and  crimes  committed  in  the  former 
can  be,  and  have  usually  been,  tried  by  commissioners 
of  oyer  and  terminer  in  the  latter,  then  we  conceive 
this  commission  was  well  warranted,  and  the  trial  and 
conviction  were  legal,  in  case  there  be  no  other  objection 
against  them ;  but  if  crimes  committed  in  Spanish  Town 
cannot,  by  the  laws  of  that  government,  be  so  tried  in 
St.  Christopher's,  then  this  commission,  and  the  pro- 
ceedings thereupon,  were  against  law  ;  and  there  being 
no  settled  courts  of  justice  in  Spanish  Town,  we  appre- 
hend the  safest  method  of  bringing  White  to  Justice  is 
to  send  him  over  into  England  to  be  examined  before  the 
privy  council,  according  to  the  statute  33d  Henry  VIII. 
whereupon  a  special  commission  of  oyer  and  terminer 
may  be  issued  under  the  great  seal  of  Great  Britain,  for 
trying  him  pursuant  to  the  directions  of  that  act ;  but  as 
that  may  be  attended  with  great  trouble,  if  the  Govern- 
or has  authority  by  his  commission  and  instructions  to 
erect  courts,  and  constitute  officers  of  justice  in  Spanish 
Town,  and  there  are  sufficient  inhabitants  within  that 
island,  qualified  to  serve  upon  the  grand  and  petty  jury ; 
then,  we  apprehend,  the  Governor  may  grant  a  com- 
mission of  oyer  and  terminer,  and  appoint  proper  offi- 
cers for  summoning  juries,  and  other  purposes,  in  order 
to  the  trying  of  the  prisoner  within  Spanish  Town. 

P.  YORKE. 
December,  18,  1725.  C.  WEARG. 


472  OPINIONS  OP  IMMINENT  LAWYERS. 

(4.)  TliQ  opinion  of  Hie  Attorney   General 
on  the' jurisdiction  of  the  Jamaica  courts. 

To   the   Right  -  Hon.  the  Lords    Commissioners   for 
Trade  and  Plantations. 

May  it  please  your  Lordships. 

In  pursuance  of  your  Lordships'  desire,  signified  to 
me  by  a  letter  from  Mr.  Pownall,  bearing  date  the  23d 
of  May  last,  inclosing  a  letter  from  Mr.  Knowles, 
Governor  of  Jamaica,  acquainting  your  Lordships 
that  Mr.  Morse,  one  of  the  assistant  judges  there,  had 
held  a  court  of  nisi  prius,  in  the  parish  of  Westmorland, 
by  his  own  authority ;  together  with  the  copy  of  an  act 
passed  in  the  island  of  Jamaica,  in  December,  1751,  in- 
titled  "  an  act,  appointing  commissioners  of  nisi  prius, 
and  enlarging  the  jurisdiction  of  justices  of  the  peace  in 
matters  of  debt,  "  and  desiring  my  opinion  whether  Mr. 
Morse  had  any  power  to  hold  a  court  of  nisi  prius,  and 
to  hear  and  determine  causes  therein,  without  a  com- 
mission from  his  Majesty;  if  not,  what  punishments  is 
he  liable  to,  and  what  will  be  the  proper  method  of  pro- 
ceeding against:  And  also  by  his  letter  of  the  21st  in- 
stant, inclosing  another  letter  from  Mr.  Knowles,  Gover- 
nor of  Jamaica,  acquainting  your  Lordships  that  he  had 
ordered  the  Attorney  General  of  the  island  to  prosecute 
Mr.  Morse  for  having  held  a  court  of  nisi  prius,  without 
his  Majesty's  commission,  and  inclosing  a  copy  of 
the  proceedings  of  the  court  thereupon,  and  to  ac- 
quaint me,  that  as  this  affair  has  occasioned  much  heat 
and  disturbance  in  the  island,  and  your  Lordships  are  pre- 
paring to  write  to  Mr.  Knowles  thereupon,  your  Lord- 
ships beg  the  favour  of  my  opinion  upon  the  case, 
stated  in  his  former  letter  upon  this  subject,  as 


OF    THE  COLONIAL  CONSTITUTIONS.  473 

soon  as  I  conveniently  can ;  all  which  papers  are  here- 
with returned;  I  have  taken  the  matter  into  considera- 
tion, and  am  of  opinion,  that  Mr.  Morse  had  no  authority, 
by  the  words  or  meaning  of  the  said  act  passed  in  Ja- 
maica, to  hold  a  court  of  nisi  prius,  and  to  hear  and  de- 
termine causes  therein,  without  a  commission  from  his 
Majesty.  The  said  act  expressly  says,  any  of  the  justices 
of  the  supreme  court  of  judicature  are  to  be  appointed 
by  a  commission  under  the  broad  seal. 

It  refers  their  jurisdiction  to  that  of  justices  of  assize 
and  nisi  prius  in  England,  under  the  IBth  of  Edward  I. 
and  other  laws.  Now,  justices  of  assize  and  nisi  prius, 
in  England,  derive  their  authority  from  the  King's  com- 
mission, and  never  act  without. 

In  that  part  of  the  act  which  gives  power  to  enter  up 
judgments  by  defaults,  the  actions  are  described  to  be 
such  as  are  triable  in  the  country,  upon  the  commissions 
hereinbefore  mentioned. 

The  power  given  by  the  said  act  is  plainly  copied  from 
the  case  of  justices  of  nisi  prius  in  England,  who  act  by 
commission,  and  has  no  relation  to  that  authority  which 
is  given  to  the  two  chief  justices  and  chief  baron,  by  an 
act  passed  the  18th  of  Elizabeth. 

If  Mr.  Morse  acted  ignorantly,  and  from  a  misappre- 
hension and  misconstruction  of  the  act,  I  think  he  is  not 
liable  to  a  criminal  prosecution,  for  a  bare  error  of  judg- 
ment in  respect  to  his  jurisdiction. 

If  he  acted  seditiously,  in  contempt  of  the  King's  author- 
ity, and  in  defiance  of  law,  I  think  he  was,  and  is,  liable 
to  be  prosecuted  by  information,  as  for  a  misdemeanor; 
but  in  every  light,  I  apprehend  the  court  has  done 
wrong  in  refusing  to  issue  process  upon  the  information^ 

filed  by  the   attorney  ^general,  and   takiug  upon  them- 
61 


474  OPINIONS  OF  EMINENT  LAWYERS. 

selves,  as  it  were  exofficio.  to  judge  of  the  information,  and 
to  quash  it,  not  for  any  irregularity,  but  upon  the  merits. 

June  24,  1754.  W.  MURRAY. 

(5)  The  opinion^of  the  Attorney  and  Solicitor,  Ryder 
and  Murray ',  on  the  jurisdiction  of  the  Bermuda  courts. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships; 

In  pursuance  of  your  Lordships'  desire,  signified  to  us 
by  Mr.  Hill,  in  his  letter  of  the  8th  of  Decmber  last,  in- 
closing letters  and  papers  received  from  William  Poppel 
Esq.,  his  Majesty,s  Governor  of  the  Bermuda  Islands, 
(which  are  herewith  returned,)  and  desiring  out  opinion 
upon  the  cases  therein  stated :  with  respect  to  the  case 
stated  by  the  chief  aud  assistant  judge  of  the  King's 
bench,  in  the  Bermuda  Islands,  we  have  taku  it  into  con- 
sideration, with  the  several  queer ies  subjoined. 

As  to  the  first  qucere,  we  are  of  opinion,  that  the  judges 
of  the  King's  bench  had  full  power  to  issue  their  precept, 
to  the  freeholders,  and  compel  them  to  execute  it  in  the 
case  put,  of  a  justice  of  peace  resigning,  notwithstanding 
that  particular  instance  is  not  mentioned  in  the  enumera- 
tion, the  plain  intent  of  the  act,  in  that  part  of  it  which 
is  referred  to,  being  to  supply  the  waut  of  a  justice  of 
peace  where  that  might  happen,  from  whatsoever  cause 
that  want  might  arise;  nor  are  the  words  incapable  of  that 
precise  construction,  the  word  inability  of  any  justice  of 
peace  being  equally  applicable,  even  in  a  proper  sense, 
to  the  case  of  a  justice  who  disables  himself  by  resigna- 
tion, as  to  that  of  one  disabled  by  any  other  means. 

As  to  the  second  and  third  guceries,  we  are  of  opinion 


OP  THE  COLONIAL  CONSTITUTIONS.  475 

that  the  freeholders  to  whom  the  precept  was  directed, 
were  guilty  of  a  contempt  of  the  court  in  disobeying  it 
and  may  be  punished  in  a  summary  way  by  order  or 
rule  of  court,  with  fine  and  imprisonment.  Though  this 
method  is  proper  to  be  taken  to  support  the  authority  of 
the  court,  yet  we  think  the  court  might  have  proceeded 
to  hear  the  causes,  aud  impannel  juries,  out  of  such  as 
were  returned,  according  to  the  act,  and,  therefore, 
were  under  no  necessity  of  creating  that  delay  to  the 
suitors,  which  must  have  arose  from  the  adjourment 
till  this  point  on  the  construction  of  the  act  could  be  set- 
tled. We  mention  this  in  order  to  prevent  the  ill  conse- 
quence for  the  future  of  such  delays,  in  case,  by  any  ac- 
cident, due  returns  should  not  be  made  of  jurors  here- 
after, which,  we  think,  should  not  stop  the  course  of  jus- 
tice, in  case  there  are,  on  the  whole,  jurors  sufficient 
for  the  business  of  the  court. 

With  respect  to  the  case  and  guceries,  stated  by  Gover- 
nor Popple,  in  his  letter  of  the  8th  of  July,  1749.  There 
are  four  qu&ries  which  he  makes :  to  the  two  first,  we  are 
.  of  opinion,  that  both  the  whole  acts  in  the  times  of 
Governor  Pitt  and  the  present  Governor's  brother,  are 
determined,  and  each  ceased  or  expired  on  the  determina- 
tion of  the  goverment  of  the  respactive  Governors  in 
whose  times  those  laws  were  made;  to  the  third  and 
fourth  queries,  we  think  as  the  country  had  the  benefit 
of  the  free  enjoyment  of  the  fishery,  they  ought,  during 
the  years  of  that  enjoyment,  to  make  good  the  one  hun- 
dred pounds  sterling  a  year  to  Governor  Popple.  The 
method  of  relief  is  by  his  Majesty's  recommending  it  to 

their  assembly. 

D.  RYDER. 

April  13,  1750,  W.  MURRAY. 


476  OPINIONS  OF  EMINENT  LAWYERS. 

(6.)  Mr.  Lamb1  s  opinion  on  tlie  courts  of  South  Carolina. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords; 

In  pursuance  of  your  Lordships'  commands,  signified 
to  me  by  Mr.  Hill 's  letter  of  the  17th  of  October,  1747, 
I  have  perused  and  considered  the  following  act,  passed 
in  South  Crrolina  in  Jnne,  1747,  intitled  "  an  act  to  em- 
power two  justices  and  three  freeholders,  or  a  majority  of 
them,  to  determine  in  all  actions  of  debt,  where  thematter 
in  dispute  doth  not  exceed  twenty  pounds  current  money, 
which  is  now  equal  to  four  pounds  proclamation  money 
and  is  not  more  then  seventy-five  pounds  current  money 
which  is  equal  to  fifteen  pounds  proclamation  money." 

Since  this  act  has  been  under  my  consideration,  I  have 
been  attended  by  the  provost-marshal  of  this  province, 
on  behalf  of  himself  and  other  patent  officers  there  who 
have  petitioned  against  the  passing  this  act,  and  I  have 
heard  their  several  objections  thereto,  and  also  have 
heard  the  agent  of  the  said  province  in  support  of  the 
said  act,  and  shall  here  represent  to  your  Lordships  in 
what  light  this  act  appears  to  me.  I  find  that  in  the 
year  1692,  an  act  passed  in  this  province,  intitled  "  an 
act  for  the  trial  of  small  and  mean  causes,  wherein  one 
or  more  justices  of  the  peace  were  empowered  to  deter-* 
mine  actions  not  exceeding  forty  shillings  current  money, 
which  was  to  continue  for  two  years."  This  act  was  afs 
terwards  revived,  from  time  to  time,  and  in  1712  was,  by 
an  act,  made  perpetual;  and  in  1721,  an  act  passed  where- 
in one  justice  of  the  peace  was  empowered  to  determine 
actions  not  exceeding  ten  pounds  current  money,  or  forty 
shillings.  This  act  was  repealed  in  1726,  and  an  act  then 


OF  THE  COLONIAL  CONSTITUTIONS.  477 

passed,  wherein  one  justice  of  the  peace  was  empowered 
to  determine  actions  not  exceeding  twenty  pounds  cur- 
rent money :  and  there  are  fees  appointed  in  these  acts 
for  the  justices  and  other  officers,  for  the  execution  of 
the  same.  Thus  these  acts  stood  till  June,  1747,  when 
the  act  now  under  reference  to  me  passed;  and  I  find  this 
act  to  be,  in  many  respects,  different  from  the  former 
acts,  and  that  there  are  many  good  and  proper  clauses  in- 
serted, supposing  that  the  foundation  of  the  act  was 
proper;  but  it  must  first  be  considered,  whether  the  same 
reason  will  hold  for  so  summary  a  way  of  determining 
actions  not  exceeding  twenty  pounds  currency,  as  the 
law  stood  before,  as  for  so  large  a  sum  as  seventy  -five 
pounds  currency,  which  has  been  represented  to  me  to 
be  equal  to  tweleve  pounds  sterling,  which  is  a  large  sum 
in  that  country,  and  the  greatest  part  of  the  actions  are 
within  that  sum.  At  present,  the  King's  courtof  common 
pleas,  by  juries'  determine  these  actions  as  they  do  here; 
but  by  this  act,  actions  within  that  sum  will  not  be  cog- 
nizable there,  but  only  before  two  justices  and  three  free- 
holders, or  the  majority  of  them.  This  is,  undoubtedly, 
a  great  power  invested  in  such  a  judicature,  and  more 
so,  when  by  this  act  one  justice  is  empowered  to  make 
the  whole  court,  by  summoning  any  other  justice  and 
any  three  freeholders  he  thinks  proper ;  and  this  would 
be  further  liable  to  the  greatest  objection,  was  there  not, 
by  this  act,  liberty  to  appeal  from  any  judgment  to  the 
court  of  common  pleas.  This  kind  of  judicature  origi- 
nally arose,  I  imagine,  from  the  court  of  conscience  in 
the  city  of  London,  which  was  at  first  confined  to  forty 
shillings,  and  now  continues  the  same  ;  but  this  has  been 
as  appears  before,  increasing  from  time  to  time,  and  was 
as  I  am  informed,  attempted  to  be  carried  much  higher 


478  OPINIONS  OF  EMINENT  LAWYERS. 

than  by  this  act.  At  present,  the  execution  of  all  pro- 
cess upon  these  actions,  is  by  the  provost-marshal  or  his 
deputy,  who  is  an  officer  by  patent  from  the  Crown,  and 
gives  security,  and  acts  in  the  same  capacity  as  sheriffs 
do  here ;  but  by  this  act,  that  part  is  thrown  into  the 
hands  of  the  constable,  who  is  to  levy  all  money  upon 
executions,  and  to  pay  it  over  to  the  justice  of  the  peace, 
who  is  to  pay  it  to  the  plaintiff.  This  appears  to  me  to 
be  liable  to  objectiors,  on  account  of  the  sufficiency  of 
the  persons  in  whose  hands  the  money  is  to  come  upon 
these  actions,  who  give  no  security,  and  the  difficulty  of 
recovering  the  same  from  them ;  and  I  beg  leave  to  ob- 
serve, that  there  are  no  exceptions  of  debts  due  to  the 
Crown  within  the  compass  of  this  sum,,  which  must  also 
be  levied  by  the  constable,  and  not  by  the  King's  offi- 
cers. There  have  been  many  objections  laid  before  me, 
as  to  the  impracticability  of  executing  this  act,  and  the 
hardships  of  the  present  patent  officers,  who  will  be  de- 
prived of  their  profit  by  the  business  from  which  their 
fees  arise  being  diverted  to  another  channel ;  but  to  that 
it  has  been,  and  I  think,  may  be,  answered,  that  their 
fees  are  not  by  this  act  given  to  any  other  persons,  nor 
are  they  lessened,  and  if  it  be  necessary  for  the  public 
good  that  such  a  judicature  as  is  intended  by  this  act 
should  be  erected,  that  private  advantages  of  the  officers 
ought  not  to  interfere.  I  shall  omit  the  many  things 
that  have  been  suggested  to  me  for  or  against  this  act, 
as  I  think  the  two  points  upon  which  this  act  is  to  be 
determined  are  before  mentioned,  and  am  of  opinion,  that 
what  is  alleged  in  the  preamble  of  this  act  (which  is  the 
same  as  was  in  the  first  act  of  1692,  for  forty  shillings 
currency)  should  be  fully  proved  before  the  same  should 
pass  into  a  law,  whereby  the  trial  of  such  actions  in  the 


OF  THE  COLONIAL  CONSTITUTIONS.         479 

King's  court  of  common  pleas,  by  juries,  are  taken  away, 
and  put  into  such  a  petty  court  of  judicature ;  and  that 
the  officer  under  such  court,  to  executed  the  process, 
should  be  of  sufficiency  to  answer  to  the  King,  as  well 
as  the  subject,  for  his  behavior.  This  act  took  place  im- 
mediately from  the  passing,  and  is  to  continue  five  years, 
and  there  is  no  clause  suspending  the  execution  thereof 
till  approved  pursuant  to  the  Governor's  instructions. 

Lincoln's  Inn,  Jan.  30,  1747.  MAT.  LAMB. 

(7)  On  the  court  of  chancery,  in  Barladoes,  l>y  tl:e 
Attorney  General,  Nortlicy. 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  annexed 
petition  of  Mr.  Thomas  Maycock,  and  have  heard  him, 
and  also  the  agents  for  the  island  of  Barbadoes  who 
desired  to  be  heard  concerning  the  same,  and  who 
allege,  that  without  time  be  allowed  them  to  send  to  the 
island  of  Barbadoes,  for  authentic  accounts  of  the  pro- 
ceedings of  the  court  of  chancery,  complained  of  by 
the  petition,  they  cannot  give  any  answer  to  those 
complaints,  and  Mr.  Maycock  hath  produced  to  me  the 
affidavits  hereunto  annexed,  to  prove  the  matters 
suggested  in  his  petition ;  on  perusal  of  which,  and  the 
petition,  it  seems  to  me  the  petitioner  hath  been  hardly 
dealt  with  if  what  is  sworn  be  true  ;  for  by  the  course 
of  courts  of  equity  in  England,  if  the  defendant,  being 
served  with  process  to  appear,  is  in  contempt  for  not 
appearing,  and  the  processes  of  contempt  have  been 
carried  to  a  sequestration,  the  defendant  appearing  by 


480  OPINIONS  OF  EMINENT  LAWYERS. 

his  attorney,  and  paying  the  costs  the  plaintiff  hath 
been  at  in  prosecuting  on  such  contempt,  the  sequestra- 
tion and  all  other  process  founded  on  such  contempt  is 
to  be  set  aside,  and  the  defendant  hath  right,  if  absent 
at  distance  from  the  place  where  the  court  is  holden,  to 
have  a  commission  to  take  his  answer.  In  this  case,  it 
appears  by  the  petition  and  affidavits,  that  the  attornies 
of  the  defendant  did  desire  to  appear  for  him,  and  the 
affidavit  is  that  the  costs  were  offered  to  be  paid>  but  the 
attornies  prayed  to  be  made  parties  to  the  suit,  which 
could  not  be ;  for  if  so,  the  plaintiff  would  have  been 
deprived  of  the  discovery  he  had  a  right  to  have  from 
the  defendant  by  his  oath,  but  they  should  have  appeared 
for  him,  and  prayed  a  commission  to  take  his  answer, 
which  I  do  not  observe  was  done  ;  yet  it  is  alleged  by 
the  petitioner,  that  the  prayer  to  have  the  attornies 
made  parties  is  according  to  the  constant  practice  of  the 
islands,  where  the  parties  themselves  are  absent;  But 
the  defendant  ought  to  have  been  admitted  to  appear  by 
attorney,  and  was  not  bound  to  appear  in  person,  as  it 
is  sworn  was  insisted  on.  This,  however,  is  but  the  fact 
as  it  is  stated  by  one  side,  the  other  not  having  had 
opportunity  to  be  heard,  and,  for  that  reason,  I  am  of 
opinion  her  Majesty  will  not  be  advised  to  make  any 
such  order  for  the  petitioner's  relief  as  is  prayed  by  the 
petition ;  besides,  it  is  not  usual  for  her  Majesty  to 
interpose  in  causes  between  party  and  party,  depending 
in  her  Majesty's  courts  of  justice,  by  giving  directions 
in  what  manner  the  judges  of  such  courts  shall  proceed 
therein  nor  will  it  be  proper,  for  that  when  there  shall 
be  an  appeal  from  the  final  decree  in  such  causes,  the 
same,  and  all  the  proceedings  therein,  are  to  be  laid 
before  her  Majesty  for  her  royal  determination  thereon ; 


OF    THE  COLONIAL  CONSTITUTIONS.  481 

yet  on  the  hard  circumstances  of  the  petitioner's  case, 
appearing  by  the  annexed  affidavits,  and  for  that  it  hath 
been  admitted  by  the  agents  for  the  island  of  Barbadoes, 
that  the  manner  of  proceeding  in  this  case  is  new,  and 
what  hath  not  been  often,  if  at  all,  used  in  that  island,  I 
submit  it  to  your  Lordships'  consideration,  whether  a 
copy  of  the  petition  may  not  properly  be  transmitted  to 
the  Governor  of  that  island,  Avith  an  account  of  the 
course  of  proceeding  of  courts  of  equity  in  England  in 
case  of  contempts,  and  how  the  same  have  been  here 
discharged,  directing  the  Governor  to  see  that  justice  be 
done  the  petitioner  if  it  hath  been  denied  him  hitherto. 

December  6,  1705.  EDW.  NORTHEY. 

(8.)  Ike  opinion  of  Mr.  Jackson,  on  the  power  of  the 
Governors,  as  Chancellors,  over  idiots. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  humble  obedience  to  your  Lordships'  commands, 
signified  to  me  by  Mr.  Pcwnall.by  his  letter  of  the  10th 
of  December  last,  I  have  prepared  the  draught  of  a 
clause,  giving  to  the  Governors  of  the  plantations,  as 
chancellors,  tho  necessary  power  to  issue  commission  for 
the  care  and  custody  of  idiots  and  lunatics,  agreeably  to 
the  usage  and  practice  of  this  kingdom. 

And  whereas  it  belongeth  to  us,  in  right  of  our  royal 
prerogative,  to  have  the  custody  of  idiots  and  their 
estates,  and  to  take  the  profits  thereof  to  our  own  use, 
finding  them  necessaries,  and  also  to  provide  for  the 
custody  of  lunatics  and  their  estates,  without  taking  the 
profits  thereof  to  our  own  use  :  and  whereas  while  such 
idiots  and  lunatics,  and  their  estates,  remain  under  our 

immediate  care,  great  trouble  and  charges  may  arise  to 
62 


482  OPINIONS    OF  EMINENT  LAWYERS. 

such  as  shall  have  occasion  to  resort  unto  us  for  direc- 
tions respecting  such  idiots  and  lunatics  and  their 
estates  ,  and  considering  that  writs  of  enquiry  of  idiots 
and  lunatics  are  to  issue  out  of  our  several  courts  of 
chancery  as  well  in  our  provinces  in  America,  as  within 
this  our  kingdom  respectively,  and  the  inquisitions 
thereupon  taken  are  returnable  in  those  courts,  we  have 
thought  fit  to  intrust  you  with  the  care  and  commitment 
of  the  custody  of  the  said  idiots  and  lunatics  and  their 
estates ;  and  we  do  by  these  presents  give  and  grant 
unto  you  full  power  and  authority,  without  expecting 
any  further  special  warrant  from  us  from  time  to  time,  to 
give  order  and  warrant  for  the  preparing  of  grants  of 
the  custodies  of  such  idiots  and  lunatics  and  their' 
estates,  as  are,  or  shall  be,  found  by  inquisitions  thereof, 
taken  or  to  be  taken,  and  returnable  into  our  court  of 
chancery ;  and  thereupon  to  make  and  pass  grants  and 

commitments  under  our  great  seal  of  our  province  of, 

of  the  custodies  of  all  and  every  such  idiots  and  lunatics, 
and  their  estates,  to  such  person  or  persons,  suitors  in 
that  behalf,  as  according  to  the  rules  of  law,  and  the 
use  and  practice  in  the  like  cases,  you  shall  judge  meet 
for  that  trust  ,'  the  said  grants  and  commitment  to  be 
made  in  such  manner  and  form,  or  as  nearly  as  may  be, 
as  hath  been  heretofore  used  and  accustomed,  making 
the  same  under  the  great  seal  of  Great  Britain,  and  to 
contain  such  apt  and  convenient  covenant,  provisions, 
and  agreements,  on  the  part  of  the  committees  and 
grantees  to  be  performed,  and  such  security  to  be  by 
them  given,  as  shall  be  requisite  and  needful. 

\§ih  July,  1772.  RD.  JACKSON. 

(9.)  A  second  opinion  of  the  same  lawyer,  on  the  same 
t,  in  a  ktter  to  tlic  Secretary  of  the  Board. 


OP  THE  COLONIAL  CONSTITUTIONS.         483 

Dear  Sir: 

This  accompanies  the  draught  of  a  clause  to  be  inserted 
in  the  commissions  of  Governors  in  the  plantations, 
respecting  lunatics,  &c.  It  is  very  nearly  the  same  as 
the  warrant  under  which  the  chancellors  of  Great 
Britain  act ;  which  I  thousht  advisable  (having  at  first 
framed  it  in  words  more  different,)  because  the  care  and 
custody  of  lunatics,  &c.  under  a  known  instrument 
(many  years  acted  under  in  this  kingdom)  is  more  likely 
to  be  agreeably  to  the  usage  and  practice  of  the  realm, 
than  under  any  set  of  words  newly  devised.  The 
alterations  I  have  therefore  made,  are  only  to  suit  the 
clause  to  that  in  which  the  two  countries  differ. 

The  warrant  of  the  King  to  the  chancellor  assigns 
his  custody  of  the  great  seal  as  the  reason  why  the 
authority  is  delegated  to  him  ;  that  reason  is  preserved 
in  the  draught  I  send  you,  and  so  far  the  *  commission 
containing  such  a  clause  will  give  the  power  to  the 
governor  as  chancellor  (or  as  president  of  the  court  of 
chancery  in  colonies  where  he  is  so)  but  it  cannot  be 
more  incorporated  into  the  office  of  chancellor,  as  I 
conceive,  because  neither  the  warrant  in  England,  nor 
the  commission  in  the  colonies  does  or  should  confer  a 
judicial  authority  ;  that,  the  chancellor  had  before,  in 
matters  of  equity,  and  the  courts  of  law,  in  matters  of 
common  law,  in  the  case  of  lunatics  and  their  estates,  as 
well  as  in  the  case  of  all  others.  The  warrant  in  Eng- 
land, therefore,  I  think,  only  gives  powers  of  adminis- 
tration and  management,  and  for  that  purpose  puts  the 
chancellor  in  the  place  of  the  King.  If  a  question  in 
law  or  equity  arises,  that  question  can  only  be  decided 
by  a  bill  or  action,  unless  it  be  a  question  between  the 
lunatic  and  his  committee,  which  the  lunatic  himself 


484  OPINIONS  OF  EMINENT  LAWYERS. 

could  have  decided,  had  he  enjoyed  the  use  of  his  senses. 
These  too  should  be  the  bounds  of  the  Governor's  power  ; 
and  I  have,  therefore,  chosen  the  expression  of  an 
instrument,  the  force  and  effect  of  which  have  been 
long  understood. 

July,  RICH.  JACKSON. 


(10.)  llie  opinion  of  the.  Attorney  and  Ssl'idto*',  Ryder 
and  Strange,  on  the  erecting  of  a  court  of  exchequer  in 
the  colonies. 

Qucere  1.  Whether  the  Crown  has  by  the  prerogative 
a  power  to  erect  a  court  of  exchequer  in  South  Carolina  ; 
and  in  what  manner  such  court  should  be  erected  1  We 
are  of  opinion,  that  the  Crown  has,  by  the  prerogative, 
power  to  erect  a  court  of  exchequer  in  South  Carolina, 
which  may  be  done  by  letters  patent  under  the  seal  of 
the  province;  by  virtue  of  his  Majesty's  commission  to 
the  Governor  for  that  purpose, 

2.  What   powers  a  court  so   established    will   have  ? 
whether  they  will  extend  as  far  as  the  court  of  exchequer 
in    England  ;    and   whether   the    proceedings   therein 
shnuld  be  the  same  as  in  England  1     We  are  of  opinion 
that  his  Majesty  may  erect  a  court  of  exchequer  in  South 
Carolina,  with  the  same  powers  as  the  court  of  exchequer 
here  has  :  we  think  the  proceedings  in  such  new  erected 
court  should   be  agreeably,   as   near  as  may  be,  to  the 
practice  here. 

3.  Whether  the   Governor,   by   his   commission   or 
instructions,  be  sufficiently  empowered  to  appoint  a  chief 
baron  ;  and  in  what  manner  such  chief  baron  should  be 
appointed  ]     We   think  the  general   power  of  erecting 
courts  of  justice,   as  given  by   the  commission  to   Mr. 
Horsey,  would  be  sufficient  to  authorize   him  to  appoint 


OF  THE  COLONIAL  CONSTITUTIONS.  485 

a  chief  baron  ;  but  as  by  the  39th  instruction  the  Crown 
seems  to  reserve  to  itself  the  consideration,  whether  a 
standing  court  of  exchequer  should  be  erected  or  not, 
and  as  doubts  have  arose  in  the  province  touching  the 
authority  of  the  present  chief  baron,  we  conceive  it  is 
not  advisable  to  rest  the  authority  of  erecting  such 
court  and  appointing  the  chief  baron  on  the  present 
commission  and  instructions,  but  yet  it  would  be  more 
proper  (if  his  Majesty  shall  be  so  pleased,)  by  a  special 
commission  to  his  governor,  to  authorize  the  establish- 
ment of  such  a  court  and  the  constitution  of  the  chief 
baron  and  other  officers  of  it. 

12'A  June,  1738.  J.  STRANGE. 

D.  RYDER. 

(11.)  The  Attirneg  General  Northeifs  opinion,  on  an 
act  of  the  Barbadoes  Assembly  tJ  dock  tlie  entail  of  an 
estate. 

To  the  Right  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships. 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  enclosed 
act,  passed  in  Barbadoes,  intitled  "an  act  to  dock  the 
entail  of  Mount  Lucie  plantation,  and  other,  the  estate 
in  this  island  of  John  Lucie  Blackmail  Esq.  and  to  vest, 
the  same  in  the  said  John  Lucie  Blackman,  in  fee  simple," 
which  act  hath  lain  with  me  since  the  16th  of  February 
last,  because  I  could  not  procure  a  sight  of  the  wills 
therein  mentioned,  but  having  now  seen  and  perused 
the  same,  I  have  no  objection  against  the  said  act,  but 
am  of  opinion  that  the  same  is  just  and  reasonable,  and 
fit  to  be  approved  ot  by  his  Majesty,  especially  for  that 


486  OPINIONS  OF  EMINENT  LAWYERS. 

by  the  laws  of  Barbadoes,  a  deed  registered  in  that 
plantation  (where  common  recoveries  are  not  suffered) 
will  be  as  effectual  a  bar  as  an  act  of  assembly,  but  Mr. 
Blackman,  living  here,  hath  been  advised  that  an  act  of 
assembly  will  give  most  satisfaction  to  a  purchaser. 

1th  October,  1715.  EWD.  NORTHEY. 

(12.)  2Jie  opinin  of  the  Solicitor  General  2homson,  on 
the  -same  subjzcl. 

Sir: 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners of  Trade  and  Plantations,  signified,  by  yours  of 
the  4th  instant,  I  have  considered  the  act  to  dock  the 
entail  of  certain  lands  in  the  parish  of  Chrish  Church, 
in  Barbadoes,  and  of  several  negroes  thereon,  and  of 
land  in  the  town  of  St.  Michael,  and  to  vest  the  land  and 
negroes  in  Christchurch,  in  Alice  Tickle,  spinster,  and 
the  land  in  the  town  of  St.  Michael,  in  Francis  Jemmott, 
his  heirs  and  assigns  for  ever ;  and  I  am  humbly  of 
opinion  that  the  act  is  very  proper,  and  is  only  to  supply 
the  place  of  fines  and  recoveries,  by  which,  according 
to  the  law  of  England,  these  parties  in  whom  the  fee 
simple  of  these  estates  are  now  vested,  might,  if  the 
estates  were  in  England,  have  effectually  settled  it,  as 
by  this  act,  and  barred  all  remainders  ;  so  I  cannot  think 
there  is  any  objection  to  the  passing  this  act. 

2Qth  September,  1717.  WM.  THOMSON. 

(13.)  The  opinion  of  the  Attorney  General  Northey, 
on  the  -same  subject. 

To  the  Right  Honarable  the  Lords  Commissioners  for 
Trade  and  Plantations. 


OP  THE  COLONIAL  CONSTITUTIONS.         487 

May  it  please  your  Lordships  5 

In  obedience  to  your  Lordships'  commands}  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  an  act  passed 
at  Barbadoes,  intitled  "  an  act  to  dock  the  entail  limited 
on  a  certain  plantation  situate  in  the  parishes  of  St. 
Peters  and  St.  Andrews,  in  this  island,  and  to  enable 
George  Nicholas  Esq.,  and  Susannah  his  wife,  to  mortgage 
or  sell  the  same,  with  the  negroes  thereto  belonging;" 
and  I  do  humbly  certify  your  Lordships,  that  I  have  no 
objection  against  the  said  act  being  confirmed  by  his 
Majesty,  the  intent  of  the  said  act  being  only  to  bar  an 
entail  for  the  satisfaction  of  purchasers,  which  I  am  of 
opinion  might  have  been  done  without  the  said  act. 

July  27  tK,  1717,  EWD.  NORTHEY. 

(14.)  The  opinion  of  the  Solicitor  General,  J.  1. 
Aland,  on  the  same  subject* 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations, 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  letter  from  Mr.  Popple,  transmitting  to  me  an 
act  passed  in  Barbadoes  the  thirty-first  of  May,  1716, 
intitled  "  an  act  to  dock  the  entail  limited  on  a  certain 
plantation  situate  in  the  parish  of  St.  Michael,  and  to 
enable  Thomas  Somers  Esq.,  to  sell  the  same,  with  the 
negro  slaves  thereunto  belonging,"  and  requiring  my 
opinion  thereon,  in  point  of  law  :  I  have  considered  of 
the  said  act,  and  am  humbly  of  opinion,  that  the  said 
Thomas  Somers  being  seised  of  an  estate  tail,  in  the  said 
plantation  and  negroes,  with  the  reversion  in  fee  expect- 
ant thereon,  to  himself,  the  passing  of  an  act  to  dock 


488  OPINIONS  OF  EMINENT  LAWYERS. 

that  entail ,  and  to  vest  the  estate  in  fee  simple,  to  pay 
his  debts,  and  to  make  provision  for  his  family,  is  just 
and  reasonable,  and  no  more  than  what  is  done  constant- 
ly in  England,  by  fine  and  recovery  ;  and  acts  of  the  like 
nature  have  been  often  passed  in  Barbadoes. 

IQth  October,  171G.  J.  F.  ALAND. 

(15.)  Tkc  opinion  of  the  Attorney  and  Solicitor  Gen- 
eral, Yorke  and  Talhot,  that  no  fine  levied,  or  recovery 
•suffered,  [tit  England'],  of  lands  lying  in  the  plantations, 
can  operate  effectually,  unless  the  same  lias  been  so  author- 
ized by  acts  of  assembly  in  the  colonies. 

We  are  of  opinion,  that  no  fine  levied,  or  recovery  suf- 
fered, here,  of  lands  lying  in  any  of  the  plantations,  can 
bar  the  entail  of  such  lands,  unless  the  particular  laws  or 
acts  of  assembly  of  the  plantation  where  the  lands  lie, 
have  provided  that  fines  or  recoveries,  levied  or  suffered 
in  England,  of  lands  there,  shall  have  that  effect ;  and 
in  that  case,  the  force  of  such  fines  or  recoveries,  de- 
pends upon  such  particular  laws  or  acts  of  assemblies, 
and  must  be  regulated  by  them. 

15$  Dec.  1730.  P.  YORKE. 

C.  TALBOT. 

(16.)  llm  opinion  of  the  Attorney  General  Northey.  on 
the  right  of  appeal  from  the  colonial  courts. 

Sir; 

By  order  of  the  Lords  Commissioners  for  Trade  and 
Plantations,  I  send  you  the  enclosed  extract  of  a  letter 
from  Mr.  Lowther,  Governor  of  Barbadoes,  upon  consid- 
eration whereof,  their  Lordships  desire  your  opinion,  as 
soon  as  may  be,  upon  this  following  quaere,  viz  : 

Qucere.  Whether  an  appeal  can,  or  ought  to  be  brought, 


OF  THE  COLONIAL    CONSTITUTIONS.  489 

from   the    Court   of  Exchequer   in  Barbadoes,    to  the 
governor  and  couucil  there,  as  a  court  of  chancery. 

July  15^,  1713.  WM.  POPPLE. 

I  am  of  opinion  the  Governor,  by  virtue  of  his  instruc- 
tions, is  to  admit  appeals  as  well  from  the  court  of  ex- 
chequer as  from  other  courts  in  the  island  of  Barbadoes 
to  the  governor  and  council  there,  and  this  plainly  was 
the  intent  of  the  governor's  instructions,  no  appeal  being 
directed  to  be  allowed  from  any  court  to  her  Majesty, 
but  from  the  court  of  chancery,  which  would  have  been 
provided  for,  to  have  been  from  the  court  of  exchequer 
to  her  Majesty j  if  an  appeal  had  not  been  intended  to  be 
first  in  the  chancery. 

16th  February,  1713;  .  EDW.  NORTHEY. 

(17)  The  opinion  of  tlie  same  lawyer,  on  tlie  same 
topics. 

To  tlie  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords; 

In  obedience  of  your  Lordships'  commands,  signified 
to  me  by  Mr4  Popple,  I  have  considered  of  the  petition 
of  William  Cockburn  Esq.,  whereby  he  represents  to 
your  Lordships  that  he,  being  appointed  by  the  the 
Lord  Archibald  Hamilton,  late  Governor  of  Jamaica,  to 
exercise  the  office  of  secretary  and  clerk  of  the  enrol- 
ment there  (Mr.  Page^  who  was  the  deputy  of  Mr.  Con- 
greve,  who  had  those  offices  by  patent,  voluntarily  ab- 
senting himself  from  that  island)  did  execute  the  same 
from  the  9th  of  March,  till  the  6th  of  August,  1716, 
when  he  was  removed  by  Mr.  Haywood,  the  succeeding 

Governor  of  the  said  plantation.     And  thereupon  a  bill 
63 


490  OPINIONS  OP  EMINENT  LAWYERS. 

was  brought  against  the  petitioner  by  Mr.  Beckford,  who 
was  appointed  by  the  said  Mr.  Congreve  to  be  his  de- 
puty, upon  the  death  or  absence  of  the  said  Mr.  Page, 
and  a  decree  was  given  against  him  in  Jamaica  for  more 
money,  as  the  profits  of  the  said  office,  than  he  received 
during  the  time  that  he  executed  the  same,  without 
making  any  allowance  to  him  for  the  execution  of  the 
said  offices  ;  against  which  decree  the  Governor  cannot, 
by  his  instructions,  allow  an  appeal,  the  demand  being 
under  the  value  of  five  hundred  pounds  sterling :  humbly 
praying  that  his  Majesty  would  be  pleased,  for  the  relief 
of  the  petioner,  to  give  directions  for  re-hearing  of  his 
cause,  and  the  doing  therein  what  to  justice  shall  ap- 
pertain. 

And  I  do  most  humbly  certify  your  Lordships,  that 
the  petition  is  unadvisedly  framed,  for  that  his  Majesty 
cannot,  by  law,  give  a  direction  to  any  court  to  re- 
hear any  cause  depending  therein,  but  rehearings  are 
granted,  or  denied,  by  courts  of  equity,  on  petition  of 
the  parties  grieved,  to  such  court  as  shall  be  judged 
proper. 

And  as  to  the  instructions  given  to  the  Governor  men- 
tioned in  the  petition,  whereby  he  is  restrained  from 
allowing  an  appeal  in  any  case  under  the  value  of  £500 
sterling,  that  does  restrain  the  Governer  only  from 
granting  of  appeals  under  that  value,  notwithstanding 
which,  it  is  in  his  Majesty's  power,  upon  a  petition,  to 
allow  an  appeal  in  cases  of  any  value  where  he  shall 
think  fit,  and  such  appeals  have  been  often  allowed  by 
his  Majesty ;  but  I  think  the  reference  to  your  Lord- 
ships in  that  matter  is  improper,  for  petitions  for  appeal 
from  decrees  given  in  the  plantations,  have  been  always 
refered  to  a  committee  of  the  council  for  hearing  the 


OP  THE  COLONIAL  CONSTITUTIONS.        491 

causes  of  the  plantations,  and  on  their  report  that  it  is 
proper  to  allow  the  appeal  prayed  for,  his  Majesty  in 
council  has  usually  allowed  the  same,  and  not  in  any 
other  manner.  I  have  perused  the  decree,  and  think 
the  petitioner  has  great  hardship  therein  ;  and  that  upon 
a  proper  application  he  may  obtain  an  appeal  in  that 
cause. 

Dec.  l$th,  1717.  EDW.  NORTHEY. 

(18.)  2/he  opinion  of  the  Attorney  and  Solicitor,  Ryder 
and  Murray,  on  the  commission  granted-  to  De  Lancy, 
the  Chief  Justice  of  New  York. 

We  think  the  Governor  should  not  have  granted  this 
commission  different  from  the  usage  ;  but  as  the  power 
given  by  the  commission  is  general,  we  apprehend  the 
grant  is  good  in  point  of  law,  and  cannot  be  revoked 
without  misbehaviour. 

25^  July,  1753.  D.  RYDER. 

W.  MURRAY. 

(19.)  IJie  opinion  of  the  Attorney  General,  YorJce,  in, 
1728,  on  the  Kincfs  right  to  order  a  nolle  prosequi  to  be 
entered  on  prosecutions,  in  Jamaica,  foi*  the  penalty  of 
an  act  of  Assembly. 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships7  commands,  signified 
to  me  by  letter  from  Mr.  Popple,  dated  the  6th  of  August 
instant,  referring  to  me  the  inclosed  papers,  (the  titles 
whereof  are  contained  in  a  schedule  hereunto  annexed), 
relating  to  an  information  exhibited  by  his  Majesty's 


492  OPINIONS  OF  EMINENT  LAWYERS. 

Attorney  General  of  Jamaica  against  Mr.  Donovan, 
agent  for  the  contractors  for  victualling  the  squadron  in 
the  West  Indies,  for  the  duties  of  a  quantity  of  rum, 
brought  from  Barbadoes,  and  delivered  on  board  one  of 
his  Majesty's  ships  at  Port  Royal  for  the  use  of  said 
squadron ;  and  desiring  my  opinion,  whether  his  Ma-» 
jesty  may  lawfully  grant  Mr.  Donovan  a  nolle  pro-sequi, 
as  the  law  stands  upon  which  the  information  against 
him  was  filed. 

I  have  considered  the  said  papers,  and  another  paper 
laid  before  me  by  Mr.  Sharpe,  agent  for  the  said  Mr. 
Donovan,  and  affirmed,  by  him  to  be  a  true  copy  of  the 
said  information,  and  also  an  act  of  assembly,  passed  in 
Jamaica  on  the  13th  of  November,  1724,  intitled  "  an 
act  for  granting  an  additional  revenue  to  his  Majesty  x 
his  heirs,  and  successors,  for  the  better  support  of  the 
government  of-this  island,"  which  is  the  law  whereupon 
the  said  information  is  founded  ;  and  several  clauses  of 
the  said  actj  having  reference  to  the  revenue  act,  passed 
in  the  said  island  in  the  year  1703,  now  expired.  I 
have  likewise  considered  that  revenue  act,  and  beg  leave 
in  the  first  placex  to  inform  your  Lordships  that  no  proof 
has  been  laid  before  me  of  the  facts  contained  in  the 
said  papers ;  and,  therefore,  the  opinion  I  shall  offer  to 
your  Lordships  proceeds  only  from  a  supposition  that 
those  facts  are  represented  iu  a  true  light. 

Upon  this  foundation,  I  conceive,  that  the  prosecution 
against  Mr.  Donovan,  being  for  the  duty  charged  by  the 
act  of  assembly  of  1724,  upon  rum,  and  not  for  any  pen- 
alty thereby  inflicted,  none  of  the  clauses,  inserted  in 
either  of  the  said  acts,  for  excluding  the  power  of  the 
crown  to  grant  nolle  prosequis  in  the  cases  of  penalties, 
do  extend  to  this  case ;  and,  although  the  said  duty  is 


OP  THE  COLONIAL  CONSTITUTIONS.  493 

appropriated  towards  the  support  of  the  government  of 
the  said  island,  yet  I  apprehend  his  Majesty  may  pro- 
perly judge,  upon  circumstances  laid  before  him,  how 
far  it  is  reasonable  to  permit  his  officer  to  carry  on  a 
prosecution  in  his  Majesty's  name,  for  the  recovery  of 
the  said  duty  in  a  particular  instance  :  wherefore,  I  am 
of  opinion,  that  as  the  circumstances  of  this  case  are  re- 
presented in  the  inclosed  papers,  his  Majesty  may  lawful- 
ly order  his  attorney -general  for  the  island  of  Jamacia, 
to  stay  proceedings  upon  the  said  information,  and  to 
enter  a  nolle  prosequi  to  the  same,  if  such  shall  be  his 
royal  pleasure. 

Aug.  30,  1728.  P.  YORKE. 

(20,)  Mr.  Fands  opinion  on  an  act  of  tlie  New  York 
Assembly,  for  preventing  prosecutions  by  information,  as 
inconsistent  with  the  Kings  prerogative, 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to- me  by  Mr.  Popple's  letter  of  the  first  of  May  last,  I 
have  perused  and  considered  an  act  passed  at  New  York, 
in  the  year  1727,  in  titled  "an  act  for  preventing  prose-- 
cution  by  informations."  The  act  recites,  that  many  of 
his  Majesty's  subjects  have  been  lately  prosecuted  in 
the  respective  counties,  and  in  the  supreme  court  of  this 
colony,  upon  information  filed  against  them  by  the  at- 
torney-general and  his  deputies;  though  the  matters 
charged  against  them  have  been  generally  trivial  and 
inconsiderable :  therefore,  it  is  enacted  that  all  informa^. 
tions  filed  by  his  Majesty's  attorney-general  of  this  col- 


494  OPINIONS     OP     EMINENT    LAWYERS. 

ony,  now  depending  in  the  respective  courts  of  this  col- 
ony, shall  be  quashed;  and  the  respective  judges,  and 
justices  of  the  several  courts  in  this  colouy,  where  sueh 
informations  are  filed,  shall  not  allow  or  admit  any  pro- 
cess or  proceedings  whatsoever  thereon,  after  the  publi- 
cation of  this  act;  and  all  such  process  and  proceedings, 
are  then  to  cease,  determine,  and  become  void,  and  be 
dismissed  the  said  court,  or  courts,  accordingly :  and  it 
is  enacted,  that  from  and  after  the  publication  of  this 
act,  no  person  or  persons  whatsoever,  shall  be  troubled, 
vexed,  or  disturbed  in  his,  or  their,  liberty  or  estate,  by 
the  King's  attorney-general  for  the  time  being,  or  by  his 
deputy,  or  deputies,  or  any  other  person  or  persons  what- 
soever, upon  pretence  of  any  misdemeanour  committed, 
otherwise  than  by  presentment  of  a  grand  jury,  or  by  in- 
formation by  an  order  from  the  Governor  for  the  time 
being,  signed  in  council,  for  such  prosecution;  and  the 
party,  or  parties,  so  presented,  shall  be  brought  to  trial 
the  second  court  after  such  information  filed,  or  be  dis- 
charged the  court  without  paying  of  any  fees,  any  law, 
usage,  or  custom  to  the  contrary  notwithstanding,  pro- 
vided that,  of  the  actions  already  commenced  upon  in- 
formations, as  aforesaid,  such  of  them  may  be  brought 
on  again,  as  the  Governor  for  the  time  being,  b;y  an  ex- 
press order,  signed  in  council  within  one  month  after  the 
publication  of  this  act,  shall  order  and  direct;  provided 
also,  that,  as  well  the  prosecutions  to  be  made  on  such 
orders,  as  on  any  other  such  order  or  orders,  to  be  signed 
in  manner  as  aforesaid,  shall  be  triable  in  the  respective 
counties,  only,  where  the  matters  of  fact  did  arise,  or  was 
committed.  And  it  is  further  enacted,  that  any  person, 
or  persons,  prosecuted  by  information,  and  brought  to 
trial,  the  second  court,  as  aforesaid,  and  acquitted  by  the 


OP  THE  COLONIAL  CONSTITUTIONS.        495 

Verdict  of  twelve  men,  shall  be  discharged  the  court, 
without  paying  any  fees,  excepting  to  such  person,  or 
persons,  as  he,  she,  or  they,  shall  employ  in  their  neces- 
sary defence.  It  is  further  enacted,  that,  if  the  attorney* 
general  for  the  time  being,  his  deputy,  or  deputies,  or 
any  other  person,  shall  prosecute  any  person,  or  persons, 
contrary  to  the  true  intent  and  meaning  of  this  act,  ex- 
cepting on  such  penal  statutes  as  include  the  plantations, 
or  where  it  is  otherwise  provided  for  by  acts  of  the  gen 
eral  assembly  of  this  colony,  shall  forfeit  £100  current 
money  of  the  same  colony  for  every  such  offence,  to  be 
recovered  by  action  of  debt  in  any  court  of  this  province, 
the  one  half  to  the  person,  or  persons,  who  shall  prose- 
cute the  same  to  effect,  and  the  other  half  to  his  Majes- 
ty, his  heirs,  and  successors. 

I  think  this  act  a  very  violent,  and  extraordinary,  at- 
tack upon  the  prerogative  of  the  Crown ;  for  the  right 
the  attorney-general  has  to  file  informations,  is  delega- 
ted to  him  from  the  King;  and  has  been  ever  tlrought  a 
most  essential  and  necessary  power,  with  regard  to  the 
security  of  the  public  tranquility,  as  well  as  for  the  ser- 
vice and  protection  of  his  Majesty's  revenue;  and,  I 
apprehend,  the  destroying  that  power  in  the  manner  it 
is  attempted  by  this  act,  will  be  attended  with  very  ill 
consequences;  for  if  no  delinquent  is  to  be  prosecuted 
without  going  through  so  solemn  an  inquiry  whether  it 
be  expedient  or  not,  I  believe  it  will  be  an  encourage- 
ment to  wicked  men  to  perpetrate  the  worst  of  villan- 
ies,  in  hopes,  by  justice  being  delayed,  which  it  must 
necessarily  be  in  this  form  of  proceeding,  they  may  es- 
cape that  punishment  they  justly  deserve;  and  which, 
in  policy,  ought  to  be  as  speedy  as  possible.  Another 
reason  against  the  passing  this  act,  and  which  I  beg 


496  OPINIONS  OP  EMINENT  LAWYERS. 

leave  to  submit  to  your  Lordships'  consideration,  is,  that 
all  prosecutions  now  depending  are  by  this  act  entirely 
quashed  and  discharged.  What  consequence  this  may 
have  to  the  public  peace  in  the  colony,  I  cannot  tell ;  but 
surely  many  inconveniences  will  arise  by  discharging 
these  prosecutions,  which  I  must  suppose  just,  and  not 
trivial  and  inconsiderable,  since  they  have  been  carried 
on  by  the  attorney-general >  against  whom  there  is  no 
complaint;  which,  with  submission,  supposing  there  was 
any  ground  for  the  accusation,  would  be  the  most  prop- 
er and  decent  way  of  proceeding,  rather  than  to  attempt 
the  restraining  the  prerogative  of  the  Crown,  in  so  ma- 
terial a  part  of  it, 

The  imposing  a  fine  upon  the  attorney-general,  if  he 
does  not  pursue  the  directions  of  this  act,  is,  I  appre- 
hend, an  unprecedented  step,  and  a  high  reflection  upon 
the  honour  of  the  Crown ;  for  can  it  be  supposed  his 
Majesty  will  appoint  an  attorney-general,  who  is  so  un- 
willing to  do  his  duty,  that  he  must,  by  the  fear  and 
dread  of  punishment,  be  forced  to  put  those  laws  in  ex* 
edition,  which  he  ought  strictly  by  his  employment  to 
be  supposed,  not  only  to  observe  himself,  but  to  see  a 
due  aud  strict  observance  of  by  others?  For  these  rea- 
sons, I  am  humbly  of  opinion  this  act  ought  to  be  re- 
pealed. 

June  5,  1728.  FRAN.  FANE. 

(21.)  Ilie  opinion  of  the  Attorney  and  Solicitor-Gener- 
al, Yorke  and  2a;bt)t,  on  the  same  subject. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships; 
In  obedience  to  your  Lordships  commands,  signified 


OP  THE  COLONIAL  CONSTITUTIONS.         497 

» 

to  us  by  Mr.  Popple,  referring  to  us  an  act  passed  at 
New  York  in  1727,  entitled,  "an  act  for  preventing  pros- 
ecutions by  informations,"  and  directing  us  to  give  our 
opinion  in  point  of  law  thereupon ;  we  have  considered 
the  said  act,  and  also  the  memorial  of  his  Majesty's  at- 
torney-general of  New  York,  hereunto  annexed ;  and  are 
of  opinion,  that  the  said  act  is  a  high  encroachment  up- 
on his  Majesty's  undoubted  prerogative  of  proceeding  by 
way  of  information,  and  of  dangerous  consequence,  and 
therefore  not  fit  to  be  approved. 

August  13,  1728.  P.   YORKE. 

C.    TALBOT. 

(22.)  The  opinion  of  the  Attorney-General  Northey, 
concerning  the  proceedings  in  the  courts  of  New  York,  on 
an  escheat,  and  an  appeal  therefrom. 

As  to  these  proceedings  depending  on  the  writ  of  es- 
cheat, on  the  death  of  Joseph  Baker,  which  now  stands 
on  a  demurrer,  and  not  determined ;  I  am  of  opinion 
that  depends  on  his  will,  for  if  he  hath  sufficiently  de- 
scribed the  devisees,  so  as  they  may  be  known,  they 
shall  take  thereby,  and  prevent  the  escheat  of  his  houses 
to  the  Crown.  The  pleading  of  Howard  to  the  scire  fa- 
cias is  certainly  ill,  but  that  will  not  hurt  the  devisees, 
when  they  contend  their  title.  If  the  judgment  that 
shall  be  given  be  not  liked,  error  on  it  will  lie  before  the 
governor  and  council;  and  from  him,  before  her  Majesty 
in  Council. 

July  30,  1713.  EDW.  NORTHEY. 

(23.)  The  opinion  of  the  Attorney- General  Northey,  on 
the  evidence  of  free  negroes. 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 

and  Plantations. 
64 


498  OPINIONS  OF  EMINENT  LAWYERS. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  enclosed 
act,  passed  at  Jamaica  the  10th  day  of  November  last, 
entitled  "an  act  to  prevent  negroes  being  evidence, 
against  Dorothy,  the  wife,  and  John,  Thomas,  and  Fran- 
cis, sons  of  John  Williams,  a  free  negro,"  whereby,  re- 
citing a  former  act  of  the  like  nature,  made  in  favor  of 
the  said  John  Williams,  the  father,  and  that  the  said 
John  Williams  had  educated  his  said  sons  in  the  protest- 
ant  religion,  and  had  given  them  suitable  education,  and 
that  he  had  obtained  by  his  labor  and  industry,  a  com- 
petency for  his  said  wife  and  three  sons;  which,  with 
their  lives,  might  after  be  subject  to  the  evidence  of  ne- 
groes, and  other  infidels,  it  was  enacted  that  no  negro, 
Indian,  or  mulatto,  should  thereafter  be  allowed,  or  re- 
ceived to  give  evidence  against  his  said  wife  and  child- 
ren, in  any  suit  or  suits  in  any  court  whatsoever,  or  be- 
fore any  magistrate  in  that  island,  but  that  they  should 
be  tried  by  a  jury  of  twelve  men,  as  other  subjects  of 
Great  Britain  are  tried  there ;  and  I  do  most  humbly 
certify  your  Lordships,  that  by  the  annexed  affidavit  of 
Francis  Oldfield,  it  does  appear  that  the  said  John  Wil- 
liams, his  wife  and  children,  have  all  been  baptised  in 
the  Christian  faith,  and  do  all  profess  the  protestant  re- 
ligion, and  that  by  reason  of  the  fidelity  and  integrity  of 
the  said  John  Williams  the  father,  he  obtained  his  free- 
dom several  years  ago,  and  his  said  wife  and  children 
are  also  free  from  slavery,  and  that  the  reason  of  making 
this  law  is,  for  that  by  a  law  of  Jamaica,  entitled  ".an 
act  for  the  better  order  and  government  of  slaves,"  the 
evidence  of  one  slave  against  another,  that  is  or  ha& 
been  a  slave,  is  admitted  to  be  good  and  sufficient  proof;, 


OP  THE  COLONIAL  CONSTITUTIONS.  499 

and  such  slaves,  or  persons  that  have  been  slaves,  are  to 
be  tried  by  three  freeholders,  before  two  justices  of  the 
peace,  and  such  slaves  are  not  admitted  to  be  evidence 
against  any  other:  and  I  have  no  objection  against  this 
law,  for  that  it  is  reasonable  that  a  slave  converted  to 
the  Christian  religion,  being  made  free,  should  be  admit- 
ted to  the  same  privileges  with  other  free  men,  and,  that, 
therefore,  this  law  is  proper  to  be  approved  by  his 
Majesty. 

April  16,  1717.  EDW,  NORTHEY. 

Fifthly. — Of  the  Admiralty  Jurisdiction. 

(1.)  The  opinion  of  the  Attorney-General  Northey  in 
1702,  on  the  Admiralty  Jurisdiction,  in  the  Colonies. 

The  board  of  trade,  doubtful  of  the  true  jurisdiction  of 
the  admiralty,  on  the  14th  of  July,  1702,  sent  quwries 
to  the  attorney  and  advocate-general  for  their  opinions; 
whether  the  courts  of  admiralty  in  the  plantations,  by 
virtue  of  the  7th  and  8th  of  King  William,  or  any  other 
act,  have  there  any  further  jurisdiction  than  is  exercised 
in  England  ?  If  the  courts  of  admiralty  in  the  plant- 
ations can  take  cognizance  of  questions  which  arise  con- 
cerning the  importation  or  exportation  of  any  goods  to 
or  from  them,  or  of  frauds  in  matters  of  trade  1  And  in 
case  a  vessel  sail  up  any  river  with  prohibited  goods,  in- 
tended for  the  use  of  the  inhabitants,  whether  the  in- 
former may  choose  in  what  court  he  will  prosecute,  in 
the  courts  of  admiralty  or  of  common  law  ?  Prop.  p. 
129. 

Sir  John  Cooke,  the  advocate-general,  pleaded  for  the 
jurisdiction  of  the  admiralty,  with  that  anxiety  which 
the  civilians  have  always  shewn  for  the  extension  of 
their  favorite  jurisdiction. 


500.  OPINIONS    OF    EMINENT    LAWYERS. 

As  to  the  queries  relating  to  the  admiralty  courts  in 
the  plantations,  sent  to  the  advocate-general  and  myself 
by  Mr.  Popple,  pursuant  to  your  Lordships'  commands, 
I  have  considered  of  the  same;  and  as  to  the  jurisdic- 
tion of  the  admiralty  courts  in  England  and  the  platan- 
tions,  touching  offences  committed  against  the  laws  made 
relating  to  the  plantations,  which  are  enumerated  in  the 
beginning  of  the  act  made  in  the  7th  and  8th  of  the  late 
King  William,  mentioned  in  the  qu&ries,  I  am  of  opin- 
ion, that  for  offences  against  the  act  of  the  12th  Car.  II. 
ch.  18.  for  encouraging  and  increasing  of  shipping  and 
navigation,  by  that  act,  the  admiralty  courts  in  the  col- 
onies have  no  jurisdiction;  and  the  admiralty  court  in 
England,  hath  jurisdiction  only  where  a  ship  is  taken  at 
sea  for  offending  against  that  act,  in  which  case  the  ship 
is  to  be  condemned  in.  the  admiralty  as  a  prize. 

As  for  offences  against  the  statute  of  the  15th  Car.  II. 
ch.  7.  for  the  encouragement  of  trade,  by  that  act  no 
court  of  admiralty,  either  in  England  or  the  plantations, 
have  any  jurisdiction,  the  suits  being  to  be  in  such  courts, 
wherein  no  essoign,  protection,  or  wager  of  law  shall  be 
allowed,  which,  by  construction,  are  only  the  courts  of 
law,  where  only  essoigns,  protection,  or  wager  of  law 
can  be  allowed. 

The  proceedings  for  offences  against  the  statute  22-3 
of  Car.  II.  ch.  26.  for  regulating  the  plantation  trade,  by 
that  act  may  be  in  the  admiralty  court  in  England,  but 
not  in  the  admiralty  courts  in  the  plantations. 

The  statute  7th.  William  doth  not  give  any  jurisdic- 
tion to  the  admiralty  court  in  England,  for  any  offence 
in  unlawful  trading  to  or  from. the  plantations,  but  suits 
on  this  act  in  England  must  be  in  the  Queen's  courts  of 
record  at  Westminster ;  but  proceedings  may  be  in  the  ad- 


OF  THE  COLONIAL  CONSTITUTIONS.  501 

miralty  or  other  courts  in  the  plantations,  at  the  election 
of  the  informer,  for  importing  or  exporting  to  or  from  the 
plantations,  in  any  ship  but  such  as  are  described  by  that 
act,  and  manned  as  that  act  directs,  which  is,  that  the 
forfeiture  may  be  sued  for,  in  any  court  in  the  planta- 
tions generally,  which  includes  the  court  of  admiralty ; 
and  the  rather,  because  the  act  expressly  takes  notice  of 
the  court  of  admiralty,  as  a  fixed  court  in  the  planta- 
tions for  other  purposes ;  and  I  am  of  opinion  as  to  the 
clause,  fol.  502,  that  it  doth  not  concern  trading  in  un-> 
qualified  ships,  that  being  provided  for  by  the  former 
clause,  but  refer  to  the  clause  immediately  preceding  it, 
fol.  500,  which  enacts,  that  all  ships  coming  into,  or  go- 
ing out  of,  any  of  the  plantations,  and  lading  or  unlading 
goods,  and  also  their  masters  and  ladings,  shall  be  sub- 
ject to  the  same  entries,  visitations,  searches,  penalties, 
and  forfeitures,  as  to  the  entering,  lading,  or  discharging 
their  respective  ships  and  ladings,  as  ships  and  their  la- 
dings, and  the  commanders  of  such  ships,  are   subject 
and  liable  to,  in  this  kingdom,  by  virtue  of  an  act  of  par- 
liament made  in  the  14th  of  Car.  II. ;    and  also  subject 
to  such  other  powers  and  authorities  of  the  officers,  for 
collecting  and  managing  his  Majesty's  revenue,  and  in- 
specting the  plantation  trade,  and  liable  to  such  pains 
and   penalties,   touching  the  importing  and  exporting 
goods  into,  and  out  of  the  plantations,  as,  by  the  same 
last  recited  act,  are  provided  and  inflicted,  touching  pro- 
hibited goods  in  this  kingdom.     By  which  clause  I  am 
of  opinion,  that  that  act  gives  the  admiralty  court  in 
the  plantations  jurisdiction  of  all  penalties  and  forfeit- 
ures for  unlawful  trading,  either  in  defrauding  the  King 
in  his  customs,  or  importing  into,  or  exporting  out  of, 
the  plantations,  prohibited  goods,  and  of  all  frauds  in 


502  OPINIONS  OF  EMINENT  LAWYERS. 

matters  of  trade,  and  offences  against  the  acts  of  trade, 
committed  in  the  plantations  ;  and  that  in  all  the  cases 
before-mentioned,  except  the  trading  in  unqualified  ships, 
not  manned  as  directed  by  the  act  of  the  7th  William, 
suit  can  be  only  in  the  admiralty  in  the  plantations ;  and 
for  the  excepted  offences,  suit  may  be  in  any  court  in 
the  plantations,  at  the  election  of  the  informer. 

Part  of  this  quare  will  have  a  judicial  determination 
in  a  case  now  depending  in  the  Queen's  bench,  in  an 

action  of  trover  and  conversion  brought  by 

against  Colonel  Quarry,  the  judge  of  the  admiralty  in 
Pennsylvania,  who  as  such  in  that  court,  condemned  an 
unregistered  ship  for  trading  there,  which  will  acquit 
frim  in  that  action,  if  the  prosecution  may  be  in  the  ad- 
miralty court;  but  if  that  court  hath  not  jurisdiction  of 
the  cause,  the  proceedings  are  coram  non  judice,  and  the 
plaintiff  will  recover  against  him  as  a  wrong  doer. 

August  21,  1702.  EDW.  NORTHEY. 

(2.)  2 he  opinion  of  the  same  lawyer,  on  a  similar  sub- 
ject, in  1703. 

To  the  Right  Hon,  the  Lords  Commissioners  for  Trade 
and  Plantations, 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  order  of  reference,, 
signified  to  me  by  Mr,  Popple,  I  have  considered  of  the 
following  acts,  passed  at  the  general  assembly  of  Barba- 
does,  in  August,  September,  October  and  November, 
1702,  viz:  "an  act  to  raise  a  levy  for  repairing  the  for- 
tifications and  breast-works,"  dated  the  26th  of  August, 
1702  ;  "an  act  for  fitting  out  of  ships  or  vessels  of  war," 
dated  the  27th  of  August,  1702 ;  "  an  act  that  all  persons, 


OP  THE  COLONIAL    CONSTITUTIONS.  503 

both  civil  and  military,  in  office,  authority,  and  govern- 
ment, at  the  demise  of  the  late  King,  shall  continue  un-^ 
til  further  order  and  settlement  by  a  Governor,  or  her 
Majesty's  pleasure  be  further  known,"  dated  the  27th  of 
August,  1702;  "an  act  for  remittance  of  the  duty  of 
prize  liquors,"  dated  the  27th  of  August,  1702 :  "  an  act 
for  purchasing  a  vessel  of  war,  and  fitting  her  out,  and 
maintenance  of  prisoners,"  dated  the  10th  of  September, 
1702 ;  "a  supplemental  act,  to  an  act,  entitled  an  act  for 
purchasing  a  vessel  of  war,  and  fitting  her  out,  and  main- 
tenance of  prisoners  ;"  as  also,  "  a  supplemental  act,  to 
an  act,  entitled  an  act  for  the  fitting  out  of  ships  or  ves- 
sels of  war,"  dated  the  14th  of  October,  1702 ;  "  an  act 
for  laying  an  imposition  on  wines,  and  other  strong  li- 
quors, imported  into  this  island,"  dated  the  3d  of  No* 
vember,  1702 :  which  laws,  I  conceive,  are  agreeable  to 
law,  and  do  not  contain  any  thing  prejudicial  to  her  Maj- 
esty's royal  prerogative,  except  the  act  for  fitting  out 
ships  or  vessels  of  war,  which  gives  the  whole  prize  to 
privateers,  as  well  such  as  should  be  set  out  by  private 
persons  there,  as  at  the  charge  of  the  island,  the  perqui- 
sites of  the  admiralty  not  being  saved;  wherefore,  I 
cannot  think  it  fit  to  be  approved,  unless  a  law  be  first 
passed  in  that  island  to  restrain  the  benefits  thereby  al- 
lowed to  the  captors  to  such  privateers  as  shall  be  fitted 
out  by  the  island,  and  for  reserving  the  perquisites  of  the 
lord  high  admiral. 

And  as  to  the  act,  that  all  persons,  both  civil  and  mil- 
itary, in  office,  authority,  and  government,  at  the  demise 
of  the  late  King,  shall  continue,  &c.  it  is  unnecessary, 
provision  being  made  for  continuing  of  officers  in  the 
plantations  on  the  demise  of  any  King  or  Queen  of  this 
realm,  by  a  statute  made  in  the  first  year  of  her  Majes- 


504  OPINIONS    OF  EMINENT  LAWYERS. 

ty's  reign,  entitled  "  an  act  for  explaining  a  clause  in  an 
act  made  at  the  parliament  begun  and  holden  at  West- 
minster, the  22d  of  November,  in  the  7th  year  of  the 
reign  of  our  sovereign  lord  King  William  III.  entitled 
"  an  act  for  the  better  security  of  his  Majesty's  royal 
person  and  government." 

And  as  to  the  act  for  remittance  of  the  duty  of  prize 
liquors,  if  that  encouragement  be  thought  fit  to  be  given 
to  privateers  in  Barbadoes,  which  is  not  allowed  them 
here  in  England,  this  law  being  perpetual,  I  am  of  opin- 
ion, is  fit  to  be  continued  only  for  a  time,  for  her  Majes- 
ty's further  consideration; 

October  22,  1703;  EWD.  NORTHEY. 

(3.)  The  opinion  of  the  Advocate-General,  Sir  John 
Coolce,  on  the  same  jurisdiction. 

Ships  trading  contrary  to  the  act  of  navigation  (12 
Car.  II.  c.  18.)  are  to  be  prosecuted,  and  the  penalties 
arising  thereon,  to  be  recovered  in  any  court  of  record : 
the  words  of  the  act  are  general,  without  a  particular 
mention  of  England,  or  of  the  plantations,  and  include 
the  admiralty  courts  of  both  places,  they  being  the 
King's  courts,  and  consequently  courts  of  record. 

Ships  trading  contrary  to  the  act  for  encouragement 
of  trade  (15  Car.  II.  c.  7.)  are  to  be  prosecuted,  and  the 
penalties  arising  thereon,  to  be  recovered  in  any  of  his 
Majesty's  courts  in  the  plantations,  or  in  any  court  of 
record  in  England,  and  it  is  certain  that  the  admiralty 
court  is  the  King's  court,  and  was  so  allowed  to  be  by 
all  the  judges  under  their  hands,  anno  1632.  In  the 
eleventh  paragraph  of  the  statute,  for  preventing  plant- 
ing tobacco  in  England,  and  for  regulating  the  plantation 
trade  (22  and  23  Car.  II.  c.  26.)  it  is  said,  that  upon  un- 


OP    THE  COLONIAL  CONSTITUTIONS.  505 

lawful  importations  to,  or  exportations  from  the  planta- 
tions, one  moiety  of  the  several  ships,  and  of  their  la- 
dings, shall  go  to  the  King,  the  other  to  him  who  shall 
seize  and  sue  for  the  same,  in  any  of  the  said  plantations, 
in  the  court  of  the  high  admiral  of  England,  or  of  any  of 
his  vice  admirals,  or  in  any  court  of  record  in  England, 
by  which  the  jurisdiction  of  the  high  court  of  admiralty, 
in  England,  is  plainly  founded ;  as  is  likewise  that  of 
the  admiralty  courts  in  the  plantations,  which,  in  respect 
to  the  admiralty  of  England,  are  vice-admiralty  courts, 
and  it  is  observable,  that  both  the  admiralty  courts  are 
mentioned  before  the  common  law  courts,  as  being  prin- 
cipally intended  by  the  makers  of  that  statute  for  such 
proceedings,  and  it  is  farther  evident  by  the  same  clause; 
and  the  two  which  follow  in  that  statute,  that  the  admi- 
ralty jurisdiction  is  not  so  confined,  but  that  it  may  hold 
cognizance  of,  and  determine  the  offences,  though  the 
goods  are  valued,  and  seised,  on  land. 

The  three  statutes  above-mentioned,  viz :  the  12th; 
loth,  22d  and  23d  of  King  Charles  II.  are  recited  in  the 
preamble  of  the  last  act,  relating  to  the  plantation  trade 
(7th  and  8th  William  III.),  and  that  last  act  does  suffi- 
ciently establish  the  admiralty  jurisdiction,  in  offences 
against  the  acts  of  trade,  in  as  ample  a  manner,  and  in 
the  same  words,  as  it  doth  the  jurisdiction  of  the  courts 
at  Westminster-hall ;  and  if  it  be  objected  that  in  those 
two  places,  it  is  only  said  that  the  proceedings  for  the 
penalties  and  forfeitures  arising  from  the  offences,  and 
not  for  the  offences  themselves,  shall  be  had  in  the  courts 
of  admiralty,  it  may  be  answered,  that  the  courts  of 
Westminster  have  no  more  or  other  jurisdictions;  for 
they  are  mentioned  in  the  same  manner  as  the  admiral^ 
ty  courts,  and  not  otherwise :  however,  the  offence  and 
65 


506  OPINIONS  OF  EMINENT  LAWYERS, 

the  penalty  is  all  one  cause,  and  of  the  same  cognizance^ 
and  are  determined  all  at  once  ;  for  to  suppose  otherwise, 
were  to  make  one  court  put  in  execution  the  decree  and 
sentence  of  another,  which  were  absurd  and  impractica* 
ble. 

Against  the  jurisdiction  of  the  admiralty  courts  in  the 
plantations,  thus  deduced  and  asserted,  there  is  a  seem- 
ing objection,  from  a  clause  of  the  aforesaid  statute,  7th 
and  8th  Gul,  III.  where  it  is  declared,  that  upon  all  suits 
brought  in  the  plantations,  on  offences  against  the  sev- 
eral acts,  relating  to  the  plantation  trade,  by  reason  of 
any  unlawful  importations,  or  exportations,  there  shall 
not  be  any  jury  but  of  natives  of  England,  Ireland,  or* 
the  plantations,  from  whence  it  nlay  be  argued,  because 
admiralty  courts  use  no  juries,  they  are  not  proper  courts 
to  try  such  matters  in. 

To  which  objection  it  may,  amongst  other  things,  be 
answered,  that  this  clause  does  not  in  the  least  take 
away  the  jurisdiction,  which  not  only  the  same  act,  but 
several  former  acts  of  trade,  have  given  to  the  admiral- 
ty courts  in  the  plantations,  in  cases  of  unlawful  impor- 
tations and  exportations  \  for  the  directing  the  nature 
and  manner  of  proceeding  in  one  court,  when  two  have 
the  cognizance  of  the  same  matters,  can,  in  no  construc- 
tion, take  away  the  power  of  the  other;  but  from'that 
clause  this  conclusion,  I  conceive,  may  be  truly  and  fair- 
ly drawn,  viz  :  that  none  of  the  common  law  courts  in' 
the  plantations  should  proceed  in  such  cases,  but  where 
proper  jurymen  may  be  had,  so  that  natives  of  any  other" 
places  but  England  and  Ireland  and  the  plantations,  or 
natives  even  of  those  places  who  are  any  way  interest- 
ed, or  who  are  on  any  other  account  not  legally  quali- 
fied, cannot  serve  on  juries,  and  consequently  no  such 


OP  THE  COLONIAL  CONSTITUTIONS.         507 

trials  can  be  had  in  those  courts  in  the  plantations  where 
proper  jurymen  cannot  be  had;  and  in  such  cases  the 
admiralty  court,  as  it  is  always  a  proper  court,  will  be 
then  the  only  court  to  proceed  in,  and  determine  breach- 
es of  the  acts  of  trade. 

July  23,  1702.  J.  COOKEL 

(4.)  Mr.  Panels  opinion  on  tlie  Admiralty  Jurisdic- 
tion, in  ike  Bahamas. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

My  Lords; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  of  the  6th  of  this  instant, 
May,  wherein  your  Lordships  are  pleased  to  desire  my 
opinion,  in  point  oi  law,  whether  the  rights  of  admiralty 
in  the  Bahama  Islands,  are  comprehended  within  the 
Lords  Proprietors'  surrender?  I  have  considered  of  the 
same,  and  am  humbly  of  opinion,  upon  perusal  of  the 
original  charter  of  the  Bahama  Islands,  granted  by  King 
Charles  II,  that  there  are  no  words  jn  that  charter  which 
will  carry  a  grant  of  admiralty  jurisdiction,  and  the 
rights  and  perquisites  thereunto  belonging,  to  the  Lords 
Proprietors ;  and,  therefore,  the  Lords  Proprietors,  or 
any  "lessee  under  them,  could  never  have  any  legal  title 
or  pretence  thereto,  under  the  charter. 

May  16,  1729.  FRAN.  FANE. 

(,5)]  1  lie  Attorney-General  Northers  observations 
on  some  acts  of  the  Barbadoes  Assembly,  as  inconsistent 
with  the  Admiralty  Jurisdiction. 

'  '•>!}*<•> '  '  r:    ,  ' 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 


508  OPINIONS  OF  EMINENT  LAWYERS. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'1  order  of  reference, 
signified  to  me  by  Mr.  Popple,  I  have  considered  of  the 
following  acts,  passed  at  an  assembly  of  Barbadoes,  from 
the  17th  of  November,  1701,  to  the  10th  of  March,  1701- 
2,  viz :  "an  act  for  the  payment  of  the  sum  of  £2000 
sterling  to  his  excellency  Ralph  Lord  Grey,  baron  of 
Warke,  &c."  dated  17th  November,  1701 :  "  an  act  to 
prevent  freemen,  white  servants,  negroes,  and  other 
slaves,  running  from  this  island  in  shallops,  boats,  and 
other  vessels,"  dated  17th  November,  1701;  "an  act  for 
laying  an  imposition  on  wines  and  other  strong  liquors 
imported  to  this  island,"  dated  17th  November,  1701 ; 
"  an  act  for  the  encouragement  of  white  servants,  and 
to  ascertain  th^ir  allowance  of  provisions  and  clothes," 
dated  17th  November,  1701 ;  "  an  act  for  the  collecting 
of  several  sums  of  money  and  arrears  due  to  the  public 
of  this  island,"  dated  17th  November,  1701;  "an  act  to 
ratify,  approve,  and  confirm  letters  patent,  gifts,  grants, 
bargains,  sales,  conveyances,  and  all  other  instruments 
of  writing  relating  to  the  titles  of  the  several  owners 
and  proprietors  of  the  lands  and  tenements,  slaves,  and 
other  hereditaments,  within  this  island,"  dated  the  18th 
November,  1701;  "an  act  to  encourage  privateers,  in 
case  of  a  war,"  dated  18th  November,  1701  ;  "  an  act  to 
revive  and  continue  an  act  to  secure  the  peaceable  pos- 
session of  negroes  and  other  slaves  to  the  inhabitants  of 
this  island,  and  to  prevent  and  punish  the  clandestine 
and  illegal  detinue  of  them,"  dated  18th  November, 
1701 ;  "an  act  to  encourage  the  inhabitants  of  this  is- 
land to  become  owners  of  vessels,"  dated  18th  Novem- 
ber, 1701 ;  "  an  act  to  revive  and  continue  an  act,  enti- 
tled, an  act  to  prohibit  and  hinder  the  inhabitants  of 


OP  THE  COLONIAL  CONSTITUTIONS.         509 

this  island  to  employ  their  negroes  and  other  slaves  in 
buying  and  selling/'  dated  23d  December,  1701 ;  "  an 
act  to  raise  and  provide  a  farther  strength  of  laborers 
to  clear  the  trenches  and  repair  the  breast-works  and 
fortifications  of  this  island,"  dated  23d  January,  1701-2  ; 
"  an  act  to  raise  and  provide  a  further  strength  of  la- 
borers to  clear  the  trenches  and  repair  the  breast-works 
and  fortifications  of  this  island,"  dated  10th  May,  1701- 
2  :  which  laws  I  conceive  are  agreeably  to  law,  and  do 
not  contain  any  thing  prejudicial  to  her  Majesty's  pre- 
rogative, save  that  as  to  the  act,  entitled  "  an  act  to  pre- 
vent freemen,  white  servants,  negroes,  and  other  slaves, 
running  from  this  island,  in  shallops,  boats,  and  other 
vessels,"  (which  is  expired  also)  I  am  of  opinion  it  mak- 
ing stealing  or  taking  away  any  boat  felony,  the  disjunc- 
tive (or}  should  have  been  the  copulative  (and),  for  want 
of  which,  taking  away  a  boat,  without  stealing,,  is  made 
felony ;  and  the  power  to  kill  run-aways  is  unreasonar 
ble^  being  included  besides  slaves, 

And  except  the  "  act  for  ratifying,  &c.  letters  patent, 
gifts,  grants,  &c."  which  I  am  of  opinion  is  fit  to  be  re- 
jected, for  instead  of  quieting  possessions,  as  the  act  is 
drawn,  it  will  probably  disturb  more  than  it  will  quiet, 
for  it  confirms  all  letters  patent,  grants,  releases,  &c. 
without  restraining  it  to  such  where  the  possession  hath 
been  with  the  grant,  for  want  of  which  it  will  revive  de- 
fective grants,  under  which  there  never  was  any  enjoy- 
ment :  and  although  there  is  a  proviso  in  the  act  against 
reviving  any  letters  patent,  &c.  that  have  been  made 
void  by  acts,  judgments,  or  other  legal  ways,  }^et  defect- 
ive grants  under  which  no  enjoyment  may  have  been, 
if  not  legally  made  void,  of  which  sort  there  may  be 
many,  will  be  revived:  besides,  it  is  unreasonable  to 


510  OPINIONS  OF  EMINENT  LAWYERS, 

make  defective  grants  good,  where  for  those  defects  sub- 
sequent grants  have  been,  and  such  are  made,  good  by 
this  act,  it  making  the  defective  grants  good  against  all 
persons  claiming  under  the  Crown. 

And  except  the  "act  to  encourage  privateers,  in  case 
of  a  war,"  as  to  which  I  am  of  opinion  that  its  giving 
for  ever  hereafter  to  privateers  the  whole  prizes  to  be 
taken  by  them,  intrenches  on  her  Majesty's  prerogative, 
and  her  declaration  in  favor  of  captors,  and  gives  away 
the  perquisites  belonging  to  the  admiralty,  and  disables 
her  Majesty's  men  of  war  to  press,  on  the  most  urgent 
occasions,  any  seamen  out  of  privateers,  which  is  un^ 
doubtedly  in  the  power  of  the  lord  high  admiral  to  do, 
and  is  fit  to  be  governed  by  his  direction  ;  and  therefore 
I  think  it  fit  the  same  be  repealed. 

2(M  October,  1703.  EWD.  NORTHEY, 

(6.)  M>'.  West's  opinion  on  the  Admiralty  Jurisdic* 
tion,  in  the  plantations. 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations, 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  two  memorials  from  the  lords  of 
the  admiralty,  annexed  to  Mr.  Secretary  Popple's  letter 
of  the  5th  of  May  last,  and  as  your  Lordships  command 
me  to  be  very  explicit  in  my  answer,  I  hope  your  Lordt 
ships  will  forgive  the  length  of  it. 

By  the  fifty-fourth  article  of  his  Majesty's  instructions 
to  the  governors  of  the  American  plantations,  they  are 
directed,  "  that  in  case  any  goods,  money,  or  other  es- 
tate of  pirates,  or  piratically  taken,  shall  be  brought  in, 
or  found,  within  the  limits  of  their  respective  govern- 


OF  THE  COLONIAL  CONSTITUTIONS.     .     5ll 

or  taken  on  board  any  ships,  or  vessels,  they  do 
cause  the  same  to  be  seized  and  secured,  until  they  shall 
have  given  his  Majesty  an  account  thereof  and  received 
his  pleasure  concerning  the  disposal  thereof;  but  that 
in  case  such  goods,  or  any  part  of  them,  are  perishable, 
the  same  shall  be  publicly  sold  and  disposed  of,  and  the 
produce  in  like  manner  secured  till  his  Majesty's  further 
orders:"  which  instructions  the  lords  of  the  admiralty 
desire  may  be  annulled,  and  never  inserted  for  the  fu- 
ture in  any  instructions  to  be  given  to  the  governors  of 
the  plantations,  upon  a  supposition  that  the  governors 
are  sufficiently  authorized  and  instructed  how  to  govern 
themselves  in  those  cases  which  are  the  subject  matter 
of  this  instruction,  by  the  patents  issuing  out  of  the  high 
Court  of  admiralty,  by  which  they  are  constituted  admir-* 
als  within  their  respective  governments.  This  instruc-* 
tion,  as  your  lordships  will  be  pleased  to  observe,  relates 
to  two  things,  that  is,  first,  to  the  goods  of  pirates  ;  and, 
secondly,  to  goods  piratically  taken :  as  there  seems  to 
be  a  very  material  difference  between  them,  I  shall  con- 
sider them  singly. 

The  common  law  of  England  is  the  common  law  of* 
the  plantations,  and  all  statutes,  in  affirmance  of  the 
common  law,  passed  in  England,  antecedent  to  the  set- 
tlement of  any  colony,  are  in  force  in  that  colony,  un- 
less there  is  some  private  act  to  the  contrary ;  though 
no  statutes  made  since  those  settlements  are  there  in 
force,  unless  the  colonies  are  particularly  mentioned. 

Piracy  is  felony  (that  is,  a  capital  crime)  only  by  the 
civil  law,  as  that  law  is  the  rule  of  proceeding  in  our 
admiralty  courts,  nor  was  it  all  cognizable  by  the  com- 
mon law.  But  the  admiralty  jurisdiction  was,  by  expe- 
rience, found  not  to  be  a  remedy  adequate  to  the  mis- 


512  OPINIONS    OF  EMINENT    LAWYERS. 

chiefj  since,  by  their  law,  no  man  can  be  condemned  to 
death  unless  he  either  confesses  his  crime  or  be  convict- 
ed by  witnesses  who  saw  him  commit  the  fact,  by  which 
means  many  offenders  escape  punishment ;  and  there*- 
fore,  to  remedy  this  mischief,  it  was  enacted  by  the  stat* 
ute  of  the  eight  and  twentieth  of  Henry  the  Eighth, 
chapter  the  fifteenth,  "  that  all  treasons,  murders,  robbe- 
ries, &c.  committed  by  pirates  on  the  high  seas,  or  in 
any  other  place  where  the  admiral  pretends  jurisdiction, 
shall  be  inquired  and  tried  in  such  counties  within  the 
realm,  as  shall  be  limited  by  the  King's  commission,  in 
like  manner  as  if  such  offences  were  done  at  land  ;  and 
that  such  commissions  shall  be  directed  to  the  lord  ad- 
miral, his  lieutenant,  or  deputy,  and  to  three  or  four 
such  others  as  the  lord  chancellor  shall  name."  And 
further,  after  several  directions  for  juries,  presentments, 
&c.  it  is  enacted,  "  that  such  as  shall  be  convict  of  such 
offences,  shall  suffer  death,  without  benefit  of  clergy,  and 
forfeit  lands  and  goodSj  as  in  case  of  felonies  and  mur- 
ders done  at  land." 

Ever  since  this  statute  was  made,  no  pirate  has  been 
ever  condemned  by  a  court  of  admiralty,  qua  such, 
but  all  trials  for  piracy  have  been  by  special  commission 
for  that  purpose,  grounded  upon  the  statute.  Now  if 
this  statute  was  of  force  in  the  West  Indies,  no  person 
could  be  convicted  there  without  a  special  commission ; 
and  if  it  was  not,  the  proceedings  must  have  been  alto- 
gether at  the  civil  law,  as  received  in  the  admiralty 
courts,  unaided  by  any  statute,  and  consequently  scarce 
any  person  would  have  been  convicted  at  all,  for  doubt- 
less the  inconveniences  would  be  as  bad  there,  if  not 
worse,  than  they  were  at  home,  before  the  making  of 
that  statute. 


OP  THE  COLONIAL  CONSTITUTIONS.         613 

By  the  preamble  to  the  statute  of  the  eleventh  and 
twelfth  of  William  the  Third,  chapter  the  seventh,  it 
not  only  appears  that  ever  since  the  making  the  statute 
of  Henry  the  Eighth,  the  trial  of  pirates,  &c.  before  the 
admiral,  &c.  singly,  by  the  civil  law,  had  been  altogeth- 
er disused  and  laid  asido ;  but  also  that  the  statute  of 
Henry  the  Eighth  did  not  extend  to  the  West  Indies : 
and  therefore  it  is  enacted,  "that  all  piracies,  felonies, 
and  robberies,  committed  in  or  upon  the  sea,  or  in  any 
haven,  &c.  where  the  admiral  has  jurisdiction,  may  be 
tried  at  sea,  or  upon  the  land,  in  any  of  his  Majesty's 
islands,  plantations,  &c.  by  commission  under  the  great 
seal  of  England,  or  admiralty  seal,  &c."  which  commis- 
sioners, though  they  are  directed  to  proceed  according 
to  the  course  of  the  admiralty,  do  not  yet  derive  any 
part  of  their  authority  from  our  high  court  of  admiralty, 
but  only  from  their  special  commissions  issued  for  that 
purpose. 

From  what  I  have  already  laid  before  your  Lordships, 
I  think  it  evident  that  no  trial  of  pirates  can  be  in  the 
West  Indies  had  before  the  admiralty  courts,  qua  such, 
unless  their  admiralty  judges  will  venture  to  proceed  by 
the  civil  law  singly ;  for  they  cannot  be  aided  by  any 
statutes,  since  the  statute  of  Henry  the  Eighth  does  not 
extend  to  the  West  Indies,  and  that  of  King  William  re- 
lates only  to  those  special  commissions,  which  special 
Commissions,  founded  upon  this  last  mentioned  statute, 
are  constantly  granted  to  the  governors  of  the  respective 
provinces,  whoj  consequently,  together  with  such  other 
persons  as  are  joined  with  them  in  the  commission,  are 
the  only  court  of  judicature  (not  qua  vice  admirals,  but 
qua  special  commissioners)  in  which  any  pirates  can  be 

condemned. 

66 


514  OPINIONS    OP    EMINENT   LAWYERS. 

All  goods,  &c.  whatsoever,  which  in  consequence  of 
any  judgment  are  either  forfeited,  or  upon  any  other  ac- 
count fall  in  custodiam  legis,  unless  there  is  some  par- 
ticular provision  for  that  purpose,  are  necessarily  in  the 
custody  of  that  court  where  such  judgment  was  pro- 
nounced ;  and  the  judges  of  that  court,  or  the  receiver 
by  them  appointed,  are  accountants  to  the  king  for  such 
goods.  Now,  as  for  the  goods  of  the  pirates  themselves, 
the  custody  of  them  can  only  accrue  by  reason  of  the 
forfeiture  which  is  the  consequence  of  the  crime ;  from 
whence  it  follows,  that  the  admiralty  courts,  qua  such, 
cannot  have  any  thing  to  do  with  those  goods ;  for  if 
they  proceed  upon  the  civil  law,  simply,  by  that  law 
there  is  no  forfeiture  at  all,  but  the  forfeiture  for  piracy 
is  created  by  the  statute  by  which  it  is  enacted  that  pi- 
rates shall  forfeit  for  robberies,  &c.  done  on  the  seas,  in 
like  manner  as  for  felonies  committed  on  land,  and  that 
statute  is  extended  to  the  West  Indies  by  the  last  men- 
tioned act  of  William  the  Third,  which  act,  by  the  ex- 
press words  of  it,  can  be  put  in  execution  only  by  the 
above-mentioned  special  commissions. 

But  if  all  the  goods  be  presumed  to  be  not  the  goods 
of  the  pirates,  but  to  be  only  piratically  taken  from  oth- 
er proprietors,  it  must  be  observed,  that  there  can  be  no 
right  to  the  custody  of  such  goods  till  there  is  an  adju- 
dication of  the  piracy,  which,  in  the  West  Indies,  can  be 
obtained  only  in  a  court  commissioned  according  to  the 
above-mentioned  statutes.  . 

And  the  persons  (be  they  who  they  will)  who  have 
the  custody  of  the  goods,  are  only  trustees,  in  the  first 
place  for  the  benefit  of  the  right  owners,  and  in  case  of 
non  claim,  for  the  crown;  for  by  the  act  of  piracy,  the 
property  is  not  changed,  but  still  remains  in  the  original 


OP  THE  COLONIAL  CONSTITUTIONS.        515 

owner,  and  therefore  it  is  provided  by  the  statute  of 
the  seven  and  twentieth  of  Edward  the  Third,  section 
second  and  seventeenth,  in  what  manner,  and  by  what 
officers,  such  goods  shall  be  restored.  "If  a  merchant 
lose  his  goods  at  sea  by  piracy  (these  are  the  words  of 
the  statute),  and  they  afterwards  come  to  land,  if  he  can 
make  proof  that  they  are  his  goods,  they  shall  be  re- 
stored to  him  in  places  guildable  by  the  king's  officers 
and  six  men  of  the  country,  and  in  other  places,  by  the 
lords  there,  or  their  officers,  and  six  men  of  the  country." 

Since,  therefore,  there  can  be  no  right  (properly  speak- 
ing) in  any  person  to  have  the  custody  of  the  goods, 
either  of  pirates,  or  piratically  taken,  until  the  piracy  it- 
self be  adjudged,  and  no  adjudication  can  be  had,  but  in 
a  court  commissioned  in  the  above-mentioned  manner, 
and  since  the  custody  of  goods  must  be  in  the  court 
where  the  judgment'  is  pronounced,  unless  there  be  some 
particular  provision  to  the  contrary,  and  since  the  gov- 
ernor in  every  province,  by  virtue  of  his  special  commis- 
sion, presides  in  every  such  court,  it  follows  that  he  must 
take  care  of  (and  perhaps  answer  for)  the  persons  to 
whose  custody  the  above-mentioned  goods  may  be  com- 
mitted. For  these  reasons,  my  lords,  I  am  humbly  of 
opinion,  that  the  instruction  is  very  properly  given,  and 
that  it  is  not  fit  it  should  be  repealed. 
My  Lords ; 

The  second  memorial  presented  by  the  Lords  of  the 
admiralty  to,  his  Majesty  in  council,  and  by  your  Lord- 
ships referred  to  me,  contains  a  complaint  of  the  admir- 
alty courts  against  the  frequent  encroachments  which 
they  affirm  the  provincial  judges  make  upon  his  Majes- 
ty's authority  and  the  admiralty  jurisdiction,  by  dis- 
charging persons  imprisoned  by  the  admiralty  for  debt? 


616  OPINIONS  OF  EMINENT  LAWYERS. 

and  penalties  due  to  his  Majesty,  and  by  granting  pro- 
hibitions to  the  proceedings  in  their  courts  :  they  pray, 
therefore,  in  order  to  redress  this  grievance,  that  his 
Majesty  would  be  pleased  to  command  the  governors  of 
the  several  colonies,  to  give  all  countenance  and  assist- 
ance to  the  judges  and  officers  of  the  admiralty,  and  also 
to  restrain  the  provincial  judges  from  interrupting  the 
proceedings  of  their  courts, 

This  memorial  from  the  lords  of  the  admiralty  was 
undoubtedly  occasioned  by  the  letters  of  Mr.  Smith,  ad- 
vocate for  the  court  of  admiralty  in  New  England,  and 
the  representation  of  Mr.  Menzies,  judge  of  admiralty  in 
the  Massachusetts  Bay ;  and  upon  perusal  of  them  both, 
your  Lordships  will  plainly  see  that  the  foundation  of 
this  dispute  is  nothing  but  the  desire  which  the  admir- 
alty judges  have  of  extending  their  jurisdiction  in  the 
West  Indies :  for  the  first  article  of  which  Mr.  Menzies 
complains  is,  not  that  prohibitions  have  been  directed  to 
their  admiralty  courts,  in  cases  in  which  by  law  they 
ought  not  to  have  been  granted,  but  that  any  prohibi- 
tions were  granted  at  all ;  and  seems  to  insinuate  very 
plainly,  that  in  case  their  admiralty  there  should  exceed 
its  jurisdiction,  the  subject  has  no  other  remedy  than  by 
appeal  to  the  high  court  of  admiralty  at  home,  I  shall 
crave  leave  therefore  of  your  Lordship  to  consider  this 
question  concerning  prohibitions  upon  the  foot  of  those 
instances  which  are  alleged  by  the  above  mentioned 
gentlemen,  of  the  oppressions  they  lie  under  from  the 
common  law  courts;  but  I  shall  first  trouble  your  Lord- 
ships with  a  few  words  concerning  prohibitions  in  gen- 
eral. That  the  common  law  was  always  jealous  of  the 
encroachments  of  the  civil  law  is  certain,  and  wherever 
the  common  law  prevails,  this  jealousy  must  necessarily 


OP  THE  COLONIAL  CONSTITUTIONS.  517 

accompany  it.  Prohibitions  have  been  the  remedy  con- 
stantly applied  to  prevent  these  encroachments,  which 
have  always  issued  out  of  the  superior  courts  of  the 
common  law,  by  the  laws  of  New  England,  confirmed 
by  the  Crown ;  (and  I  mentioned  New  England  particu- 
larly, because  the  disputes  which  have  happened  be- 
tween the  judges  of  both  laws  in  that  province  have 
given  occasion  to  the  present  question)  there  are  courts 
established  in  that  colony,  and  invested  with  the  same 
powers  that  are  respectively  executed  by  the  courts  of 
King's  bench,  common  pleas,  and  exchequer,  in  Great 
Britain,  and  consequently  a  power  of  granting  prohibi- 
tions may  legally  be  executed  by  them.  Nor  is  it  a 
sufficient  answer  to  insinuate  that  the  statutes  by  which 
the  admiralty  jurisdiction  in  England  is  limited  and  con- 
fined have  no  relation  to  the  plantations :  for  as  the 
statutes  of  thirteenth  of  Richard  the  Second,  chapter 
the  fifth,  the  fifteenth  of  Richard  the  Second,  chapter 
the  third,  the  second  of  Henry  the  Fourth,  chapter  the 
eleventh,  and  twenty-seventh  of  Elizabeth,  chapter  the 
eleventh,  are  not  introductive  of  new  laws,  but  only  de- 
claratory of  what  the  common  law  was  before,  I  am  of 
opinion  that  they  are  of  force  even  in  the  plantations ; 
for  let  an  Englishman  go  whereever  he  will,  he  carries 
as  much  of  law  and  liberty  with  him  as  the  nature  of 
things  will  bear ;  but  to  shew  that  it  is  impossible  a 
power  of  granting  prohibitions  should  not  be,  wherever 
the  common  law  extended,  your  Lordships  will  need 
only  to  recollect  not  only  the  inconvenient  but  absurd 
consequences  that  would  follow  in  case  it  were  not  so ; 
for  should  the  court  of  admiralty  in  New  England  take 
upon  them  to  hold  plea  of  freehold,  or  to  take  cogni- 
zance of  actions  of  debt,  &c.  what  remedy  has  the  sub- 


518  OPINIONS  OP  EMINENT  LAWYERS. 

ject  to  vindicate  that  right  to  that  inheritance  which  he 
has  in  being  judged  by  the  common  law.  In  New 
England,  if  there  is  no  power  of  granting  prohibitions, 
remedy  he  has  none,  and  consequently  the  benefit  of  the 
common  law  must,  in  the  colonies,  be  enjoyed  by  none 
but  those  who  have  wealth  sufficient  to  support  frequent 
appeals  to  Great  Britain.  But  even  in  such  case,  how 
is  he  relieved  ?  to  the  King  in  council  he  cannot  appeal, 
for  that  is  irregular ;  from  the  sentence,  therefore,  of  a 
court  of  vice  admiralty  abroad,  he  must  apply  to  the 
court  of  high  admiralty  at  home,  I  submit  it  to  your 
Lordships,  to  determine  how  far  it  is  absurd  to  suppose 
the  law  should  afford  the  subject  no  other  remedy  against 
the  exorbitances  of  one  admiralty  Court,  than  by  send-* 
ing  him  to  another. 

On  the  other  hand,  my  Lords,  if  it  be  granted  that 
the  common  law  courts  in  the  plantations  have  a  power 
of  granting  prohibitions,  though  it  should  be  supposed 
that  (as  very  likely  they  often  do)  they  exceed  their 
bounds,  and  issue  prohibations  in  cases  where  by  law 
they  ought  not,  so  that  the  subject  may  possibly  be 
aggrieved  by  a  cause  being  substracted  from  the  admi- 
ralty jurisdiction,  to  which  it  was  proper,  and  drawn  to. 
that  of  the  common  law,  yet  there  is  an  adequate  remedy 
always  ready;  for  by  an  appeal  to  his  Majesty,  from 
whom  both  jurisdictions  flow,  he  may  obtain  redress 
against  any  grievance  he  may  lie  under  by  reason  of 
any  judgment  which  any  court  of  common  law  in  th,e- 
plantations  can  pronounce. 

I  shall  not  trouble  your  Lordships  with  any  thing 
more  concerning  prohibitions  in  general,  but  shall  beg 
leave  to  add  a  few  words  concerning  that  jurisdiction 
which  I  see  is  claimed  by  the  vice  admiralty  judges  in 


OF  THE  COLONIAL  CONSTITUTIONS.         519 

America,  by  virtue  of  the  acts  of  trade  and  naviga* 
tion,  and  also  concerning  the  instances,  which  are  given 
by  the  above  mentioned  West  Indian  civilians,  of  the 
oppressions  they  lie  under  from  the  common  law  courts; 

In  respect  to  the  acts  of  trade  and  navigation,  I  own 
myself  at  a  loss  so  much  as  to  guess  upon  which  of  them 
it  is  that  the  admiralty  judges  in  the  West  Indies  would 
found  an  increase  of  their  jurisdiction,  for  there  is  not 
one  single  Word  in  them  which  can  be  construed  so  as 
to  give  them,  there,  a  greater  power  than  is  exercised 
by  the  high  court  of  admiralty  at  home*  But  upon  these 
acts,  I  would  beg  leave  to  observe  two  particulars,  the 
first  of  which  is,  that  though  the  term  of  his  Majesty's 
courts  in  general  does  undoubtedly  comprehend  the 
courts  of  admiralty,  yet  whenever  it  is  enacted  (as 
happens,  I  think,  to  be  the  case  in  every  one  of  those 
acts,)  that  any  penalty  shall  be  recovered  in  any  of 
his  Majesty's  courts,  by  any  person  who  will  seize,  in- 
form, or  sue  for  the  same,  wherein  no  essoign,  protection, 
or  wager  of  law  shall  be  allowed,  the  admiralty  is  abso* 
lutely  excluded,  and  cannot  possibly  have  any  jurisdic- 
tion, because  those  terms  by  which  the  courts  are  de- 
scribed are  perfectly  peculiar  to  the  common  law,  and 
foreign  to  that  law  by  which  the  courts  of  admiralty 
must  proceed ;  secondly,  that  whenever  any  prosecution 
is  directed  to  be  had  in  any  court  of  record,  the  ad- 
miralty jurisdiction  is  utterly  excluded,  since,  by  law, 
they  are  not  a  court  of  record. 

I  shall  not  need  to  trouble  your  Lordships  with  en-- 
umerating  the  several  passages  in  the  acts  of  trade  and 
navigation,  since  the  application  of  these  two  general 
rules  (which  I  take  to  be  law)  will  resolve  almost  any 
question  which  can  arise  upon  the  perusal  of  themj 


520  OPINIONS  OF  EMINENT  LAWYERS. 

and,  therefore,  all  that  now  remains  for  me  to  do,  in  or- 
der to  complete  my  obedience  to  your  Lordships'  com* 
mands,  is  briefly  to  consider  the  facts  alleged  by  Mr. 
Smith  and  Menzies,  and  the  method  of  remedying  their 
supposed  grievances,  which  the  Lords  of  the  admiralty 
pray  of  his  Majesty. 

The  first  fact  which  they  mention  amounts  to  no 
more  than  this :  that  two  persons,  named  John  Oultol 
and  Cornelius  Waldall,  didj  by  public  placards,  &c.  insult 
and  defy  the  jurisdiction  of  the  courts  of  admiralty,  and 
upon  a  libel  being  exhibited  against  them  in  that  court, 
they  were  fined.  The  judge  of  common  law,  upon  con- 
sideration of  this  case,  granted  a  prohibition,  which  the 
civilians  there,  it  seems,  think  to  be  illegal ;  but  I  must 
own  myself  to  be  of  another  opinion,  and  that  the 
judges  could  not  refuse  it  upon  motion.  The  most  that 
a  court  of  admiralty  can  do,  is  to  fine  and  imprison  for 
a  contempt  in  the  face  of  the  court.  But  there  can  be 
no  proceedings  before  them  for  any  thing  that  is  done 
out  of  court,  and  I  make  no  doubt  but  our  courts  in 
Westminster  Hall  would  have  granted  a  prohibition  in 
the  same  case; 

2.  A  second  complaint   is,  that  an  action  of  trover 
was  brought  for  a  ship  after  it  had  been  sold,  by  decree 
of  the  admiralty  court,  which   might   possibly  be  very 
just,  if  the  whole  case  had  been  stated. 

3.  A  third  complaint  is,  that  a  prohibition  was  grant- 
ed upon  a  libel  being  exhibited  in  the  admiralty  court, 
for  transporting  of  wool,  contrary  to  the  acts  of  naviga- 
tion ;  which  I  conceive  to  have  been  regularly  issued, 
since  offences  of  that   kind  are   directed  to  be  tried  in 
courts  of  record,  and  consequently   the   admiralty  can 
have  nothing  to  do  with  them. 


OF    THE  COLONIAL  CONSTITUTIONS.  521 

In  these  particulars,  I  am  of  opinion  that  their  com- 
plaints are  not  well  grounded;  but  then,  as  to  their  be- 
ing disturbed  in  the  exercise  of  the  admiralty  jurisdict- 
ion of  what  is,  or  is  not,  prize,  they  certainly  are  in  the 
right  to  complain,  and  I  doubt  not  but  your  Lordships 
will  think  that  it  is  the  duty  of  the  governors  to  support 
them  in  it  by  all  means  lawful,  and  if  they  are  negligent 
in  so  doing,  his  Majesty's  order  for  that  purpose  would 
undoubtedly  make  them  careful  for  to  do  it  for  the  time 
to  come,  which  brings  me  to  the  end  of  this  long  report 
with  which  your  Lordships  have  been  troubled.      The 
lords  of  the  admiralty  pray  that  his  Majesty  wouM'be 
pleased  to  order  the  governors  to  restrain  the  provincial 
judges  from   interrupting  the  proceedings  of  the  courts 
of   admiralty  •   by  which,  if  they  mean  that  the  judges 
should  be  hindered  from  granting  prohibitions,  I  cannot 
conceive  how  they  can  be   relieved  in  the  manner  they 
propose ;  for  if  the  prohibitions  are  legally  granted^  no 
order  can  authorize  him  to  hinder   them,  and  if  they 
are  not,  the  proper  remedy  is  by  the  appeal  of  the  party 
concerned.     But  to  conclude,  if  your   Lordships,  upon 
inquiry  into  the  fact,    should  find,  as   in  all  probability 
the  fact  as  to  New  England  is,  that  the  people  there  do 
under  a  pretence  of  law  attempt  to  disturb  and,  perhaps, 
to  banish  from  that  province  the  due  exercise  of  an  ad- 
miralty jurisdiction,  derived  more  immediately  from  the 
crown  than  that  of  their  own   courts,  I  am  humbly   of 
opinion  that  the  properest   remedy   the  admiralty  can 
apply  for,  is,  that  a  bill  may  be  brought  into  parliament 
next  session  for  that  purpose,  by  which  the  manner  of 
trying  piracies,  and  the  exercise  of  the  admiralty  juris- 
diction for  the   future,  may  be  established  and  reduced 
to  certainty. 

June  20,  1720.  RICH.  WEST. 

67 


522  OPINIONS  OF  EMINENT  LAWYERS. 

(7.)  Mr,  Strahari's  opinion  on  the  poicer  of  collecting 
admiralty  dues,  in  Bermuda, 

I  have  perused  the  extract  of  a  letter  from  Colonel 
Hope,  Governor  of  Bermuda,  together  with  his  commis- 
sion of  vice-admiral,  as  also  the  copy  of  a  commission 
from  the  receiver-general  of  the  rights  and  perquisites 
of  the  admiralty  and  from  the  solicitor  and  comptroller 
of  the  same  to  Robert  Dinwiddie  Esq.  constituting  him 
their  agent  at  Bermuda,  bearing  date  the  1st  of  Septem- 
ber, 1721;  and  having  duly  considered  the  subject  mat- 
ter of  Colonel  Hope's  complaint,  in  his  aforesaid  letter,  I 
am  of  opinion  that  the  Colonel  has  no  right  to  the  dues 
and  perquisites  of  the  admiralty,  which  may  accrue 
within  the  jurisdiction  of  his  vice-admiralty,  to  retain 
them  to  his  own  use,  although  perhaps  it  may  be  true 
that  his  predecessors  in  that  government  may  have  en- 
joyed the  same  without  ever  having  accounted  _  .  them. 
Vice-admirals  are  indeed  empowered  by  their  com-- 
mission  to  collect  and  receive  all  dues  and  perquisites  of 
the  admiralty  within  their  respective  jurisdictions;  but 
they  ought  to  account  for  the  same  to  the  lords  commis- 
sioners, for  executing  the  office  of  high  admiral,  or  to 
such  other  person  as  they  shall  think  fit  to  appoint  for 
that  purpose,  for  the  use  and  behoof  of  the  Crown.     Sa 
that,  as  the  lords  commissioners  of  the  admiralty  have  a 
right  to  call  all  vice-admirals  to  account  for  such  dues- 
and  perquisites  of  the  admiralty  a^   they  shall  have  re- 
ceived within  their  respective  juri   lie  Jons,  they  may  ap- 
point proper  persons  to  take  and  receive  those  accounts 
from  the  vice-admirals. 

But  I  conceive  that  the  commission  granted  by  the 
receiver-general,  of  the  rights  and  perquisites  of  the  ad- 
miralty, and  the  solicitor  and  comptroller  of  the  same,  to 


OF  THE  COLONIAL  CONSTITUTIONS.        523 

Robert  Dinwiddie  Esq.  of  Bermuda,  is  not  to  be  warrant 
in  law,  the  same  being  an  encroachment  on  the  powers 
Actually  vested  in  Colonel  Hope,  by  his  patent  of  vice- 
admiral;  for  the  power  given  to  Mr.  Dinwiddie  by  his 
commission,  is  not  to  take  and  receive  an  account  of  the 
Colonel  as  vice-admiral  of  that  district,  of  what  dues 
and  perquisites  of  admiralty  may  have  come  to  his  hands 
or  possession,  which  perhaps  might  have  been  justifiable ; 
but  he  is  thereby  authorized  to  recover,  seize,  collect, 
and  receive,  all  such  dues  and  perquisites  of  the  admir- 
alty, of,  and  from,  all  and  every  person  and  persons 
whatsoever:  whereas,  the  vice-admiral  having  that  pow- 
er vested  in  him  by  his  patent,  no  other  person  can  have 
a  right  to  exercise  it  within  his  jurisdiction.  And  I 
take  it,  that  the  lords  commissioners  for  executing  the 
office  of  high  admiral,  are  by  their  own  patent  restrain- 
ed from  granting  this  power  of  collecting  and  receiving 
the  dues  aud  profits  of  the  admiralty  to  other  persons 
besides  the  vice-admirals  and  other  officers  belonging  to 
the  admiralty,  in  such  manner  and  sort  as  they  formerly 
were  collected  and  received  when  there  was  an  high  ad- 
miral. Wherefore,  I  humbly  conceive  that  this  commis- 
sion to  Mr,  Dinwiddie,  being  an  innovation  and  an  en- 
croachment on  the  vice  admiral's  power  as  vested  in 
him  by  his  patent,  the  same  cannot  in  law  be  justified 
and  ought  to  be  revoked. 

July  26,  1723.  WILL.  STRAHAN. 

(8,)  Ilie  opinion  of  the  Attorney  and  Solicitor-Gener- 
al, Yorke  and  Wearg,  on  the  trial  for  a  murder  commit- 
ted at  sea. 

Extract  of  a  letter  from  Mr.  Worsley,  Governor  of  Bar- 
badoes,  to  the  Lords  Commissioners  for  Trade  and  Plan- 
tations, dated  the  24th  of  January,  1724-5. 


524  OPINIONS  OF  EMINENT  LAWYERS. 

"  I  have  the  honor  to  present  to  your  Lordships,  an 
account  of  an  accident  that  has  lately  happened  here. 
The  4th  of  December  last,  the  St.  Christopher's   galley, 
James  Newth,  commander,  sailed  out  of  this  port,  and 
the  forts  fired  some  random  shot  at  her  to  bring  her  to, 
in  that  she  had  not  put  up  the  proper  signal  that  was 
given  her,  or  any  other,  which  is  to  shew  that  she  had 
cleared  out  of  all  the  offices  and  had  liberty  to  depart. 
The  master,  instead  of  bringing  to,  hoisted  more  sail, 
whence  a  matross  of  James's  Fort,  suspecting  she  had 
done  something  irregular,  (as  they  often  do  in  this  part 
of  the  world,  one  about  twelve  months  ago,  attempting 
to  carry  away  a  custom-house  officer,)  fired  a  shot  into 
her  when  she  was  about  two  miles  off,  which  happened, 
unfortunately,  to  kill  the  mate,  and  wounded  another 
man.     The  vessel  immediately  returned  into  port,  and 
as  soon^as  the  master  informed  me  of  it,  I  inquired  into 
the  fact,  upon  which  I  found  she  had  not  put  up  her  sig- 
nal, the  master  complaining  it  was  not  a  proper  signal, 
being  a  tarpauling  hoisted  upon  the  flagstaff;  and,  though 
I  found  such  signals  had  been  sometimes  given  and  had 
been  put  up,  nevertheless  as  I  thought  it  a  very  improp- 
er one,  that  there  might  he  no  such  precedents  for  the 
future,  I  suspended  the  captain  of  the  fort  for  some  time : 
However,  if  the  master  of  the  vessel  had  not  liked  the 
signal,  he  ought  not  to  have  gone  under  sail  till  he  had 
got  another,  and  ought  to  have  brought  to  upon  the  fort's 
firing.     1  he  difficulty,  at m present,  lite  under,  is  to  know 
whether,  and  where,  the  matross  t'tat  fired  the  shot  from 
James's  Fort  is  to  be  tried,  or  what  court  can  take  cogni- 
zance of  it.     The  person  that  was  killed  by  a  gun  from 
the  shore,  was  upon  the  high  seas  two  mile  3  off  of  the 
shore,  where,  I  apprehend,  my  jurisdiction  does  not  ex- 


OP  THE  COLONIAL  CONSTITUTIONS.  525 

tend,  and  his  Majesty's  attorney-general  here  is  of  the 
same  opinion.'' 

We  are  of  opinion,  that  the  matross  who  fired  the  shot 
cannot  be  tried  for  the  death  of  the  mate  in  any  court 
of  common  law,  but  that  he  ought  to  be  tried  for  the 
same  either  in  the  court  of  admiralty  at  Barbadoes,  or 
by  special  commission  under  statute  of  llth  and  12th 
W.  3.  cap.  7  which  is  now  the  most  known  and  usual 
method  of  proceeding  in  cases  of  felonies  done  upon  the 
sea  in  those  parts. 

April  17,  1725,  P.    YORKE. 

C.  WE.ARG. 

(9.)  The  ojnnion  of  the  Advocate,  Attorney,  and  Solic- 
itor-General, in  1761,  o?i  the  same  print. 

Whitehall,  Nov.  5,  1761. 
Gentlemen ; 

I  am  directed  by  the  Lords  Commissioners  for  Trade 
and  Plantations,  to  send  you  the  inclosed  copies  of  a 
letter,  which  their  Lordships  have  received  from  the 
lieutenant-governor  of  New  York,  and  of  a  report  made 
to  him  by  commissioners,  appointed  by  a  special  com- 
mission for  the  trial  of  the  master,  mate,  and  several  of 
the  crew  of  a  privateer,  charged  with  the  murder  of 
some  men  belonging  to  his  Majesty's  ship  Winchester, 
committed  within  a  bay  of  that  province. 

I  am  further  directed  to  acquaint  you,  that  the  law  of 
New  York  upon  which  the  commission  for  the  trial  of 
these  persons  was  founded,  was  repealed  by  order  in 
council  of  5th  of  September,  1700,  upon  consideration 
of  which,  and  of  the  statutes  of  Great  Britain  which 
have  reference  to  admiralty  jurisdiction,  a  doubt  has 
occuned  to  their  Lordships,  whether  there  is  in  the  col- 
ony of  New  York,  or  in  any  other  of  his  Majesty's  colo- 


526  OPINIONS  OF  EMINENT  LAWYERS, 

nies  in  America,  (unless  by  laws  which  may  have  been 
passed  in  the  said  colonies),  any  sufficient  authority  for 
the  trial  and  punishment  of  murder  committed  upon  the 
seas  within  the  admiralty  jurisdiction  in  the  said  colo-= 
nies ;  and,  therefore,  their  Lordships  desire  the  favor  of 
your  opinion  upon  the  following  questions,  as  soon  as 
conveniently  may  be,  to  the  end  that  if  there  should  be 
a  want  of  such  authority,  some  remedy  may  be  provided 
as  soon  as  possible. 

Question  1st,' — Does  the  act  of  the  28th  of  Henry 
VIII.  cap.  15.  entitled  for  pirates,  (being  passed  before 
the  establishment  of  any  of  the  British  colonies,)  extend 
to  the  said  colonies ;  and  if  it  does,  how  are  the  regula-i 
tions  therein  set  down  to  be  executed  ? 

Wo  are  of  opinion,  that  the  statute  28  Henry  VIII. 
does  extend  to  the  case  of  murder  committed  any  where 
on  the  high  seas ;  and  consequently  that  a  commission 
might  issue  in  the  present  case  into  any  county  within 
the  realm  of  England,  to  try  the  offenders  who  might  be 
brought  over  for  that  purpose,  and  the  Avitnesses  exam-: 
ined,  and  a  jury  sworn  before  such  commissioners,  un-. 
less  that  mode -of  inquiry  and  trial  should  be  deemed  in-* 
convenient, 

Question  2d. — Does  the  act  of  the  llth  and  12th  of 
William  III.  cap.  7th,  entitled  "an  act  for  the  effectual 
suppression  of  piracy,"  or  the  7th  section  of  the  act  of 
the  4th  of  George  I.  cap.  llth,  entitled  "an  act  for  the 
further  preventing  robbery,  burglary,  &c."  contain  suffi- 
cient authority  for  the  trial  and  punishment  of  persons 
guilty  of  murder  upon  the  seas  or  waters  within  the  ad- 
miralty jurisdiction  in  the  plantations  ? 

We  are  of  opinion  that  neither  of  the  acts  of  parlia- 
ment mentioned  in  this  quccre  were  intended  to  affect 


OP  THE  COLONIAL  CONSTITUTIONS.         527 

the  case  of  murders.  They  relate  merely  to  such  felo- 
nies as  are  equal,  or  inferior,  to  the  species  particularly 
expressed. 

Question  3d. — If  the  act  of  Henry  VIII.  cap;  15,  does 
not  extend  to  Americaj  and  neither  the  act  of  the  llth 
and  12th  of  William  III.  cap.  7th,  nor  the  7th  section 
of  the  act  of  the  4th  of  George  I.  cap.  llth,  do  contain 
sufficient  authority  for  the  trial  and  punishment  of  per- 
sons guilty  of  murder  upon  the  seas  or  waters  within 
the  admiralty  jurisdictions  in  the  plantations  ;  by  what 
other  authority  and  jurisdiction  are  such  persons  to  be 
tried  and  punished  in  the  said  plantations'? 

We  have  already  said,  in  answer  to  the  first  quaere-, 
that  the  statute  of  Henry  VIII.  does  extend  to  the  pres- 
ent case ;  but>  if  that  method  of  trial  and  proceeding 
should  be  found  inconvenient,  it  will  be  proper  to  apply 
to  the  legislature  for  some  new  provision  adapted  to 
such  case.  G.  HAY. 

C.  YORKE. 
F.  NORTON. 

(10.)  Tke  opinion  oft/ie  Attorney  and  Solicitor-Gen- 
eral of  jBarbadoes,  Chilton,  -and  Rawlin,  on  the  trial  of 
pirates  there. 

May  it  please  your  Excellency ; 

We  are  very  sensible  that  his  late  Majesty,  King  Wil- 
liam, was  pleased  to  send  a  commission  to  this  island  for 
trial  of  pirates,  directed  to  the  Lord  Grey,  then  Govern- 
or,- the  members  of  the  council,  and  several  other  per- 
sons. We  are  likewise  well  satisfied  that  her  present 
Majesty,  upon  her  accession  to  the  throne,  was  gracious- 
ly pleased  by  her  royal  proclamation,  bearing  date  the 
9th  day  of  March,  in  the  first  year  of  her  reign,  to  sig- 


528  OPINIONS    OF  EMINENT    LAWYERS. 

nify  and  declare  that   all  •  commissions,  both  civil  and 
military  •  granted  by  his  said  late  Majesty  should  be  con- 
tinued, and  remain  in   full  force  and  virtue  until  her 
Majesty's  pleasure  should  be  further  known,  or  that  oth- 
er provision  be  made  pursuant  to  his  late  Majesty's  com- 
missions and  instructions  to  his  governors. and  officers  ; 
and  so;  such  commissions  continued  until  your  Excellen- 
cy's arrival  in  this  island  ;  but  upon  your  coming  here, 
it  was  the  unanimous  opinion  of  all  persons  in  this  island 
that  all  commissions  granted  to  the  Lord  Grey,  late  Gov- 
ernor of  this  island,  ceased^  and,  that  if  her  Majesty  had 
thought  fit  to  have  continued  the  commission  for  trial  of 
pirates,  a  commission  would  then  have  been  granted  to 
you  for  that  purpose,  as  well  as  one  to  be  Governor,  and 
another  to  be  vice-admiral;  and,  therefore,  we  thought 
it  was  not  prudent  and  safe  for  your  Excellency  to  di- 
rect any  prosecution  on  that  commission  directed  to  the 
Lord  Grey,  &c.  for  trial  of  pirates,  where  the  lives  of 
many  persons  might  be  concerned,  considering  also,  that 
his  late  Majesty's  commission  aforesaid  was  directed  to 
several  members  of  the  council,  some  whereof  were  dead 
before  the  granting  of  the  said  commission,  and  many 
more  now  dead  and  gone  off  this  island ;  so  that  it  would 
have  been  very  difficult  to  have  convened  persons  enough 
to  make  a  sufficient  quorum,  according  to  the  appoint- 
ment of  the  said  commission.     The  names  of  the  said 
persons,  that  are  either  dead,  or  gone  off,  are  as  follows: 
the  Lord  Grey,  now  in  England ;  Edward  Craufeild  Esq. 
dead ;  Richard  Salter  Esq.  dead ;  George  Andrews  Esq. 
dead ;  John  Bromley  Esq.  some  years  pfast  settled  in 
England ;  Patrick  Mein  Esq.  now  in  England ;  Richard 
Scot  now  in  England ;  Benjamin  Cryer,  a  clergyman ; 
Richard  Walter  Esq.  dead ;  arid  George  Larkin  Esq.  one 
of  the  commissioners  gone  off  this  island. 


OP  THE  COLONIAL  CONSTITUTIONS.         529 

And  we  are  humbly  of  opinion,  that  as  long  as  the 
statute  of  35th  Henry  VIII.  cap.  2.  continues  in  force, 
no  person  whatsoever  can  be  tried  in  this  island  for  a 
foreign  treason,  without  a  special  commission  from  her 
Majesty  for  that  purpose ;  the  said  statute  positively  di- 
recting that  all  foreign  treasons  shall  be  tried  either  in 
the  kingdom  of  England,  or  by  a  special  commission  from 
her  Majesty  ;  and  such  always  has  been  the  exposition 
of  that  statute. 

January  12,  1703^4;  E.  GHILTON. 

W.  RAWLIN. 

(ll.)  Ihe  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Nortliey  and  Thomson,  on  the  pardon  of  pirates  in 
the  colonies. 

Qu&re.  1. — Whether  the  proclamation  is  a  full  and 
sufficient  pardon  to  any  persons  who  may  have  commit- 
ted piracies  and  robberies  upon  the  high  seas  in  Ameri- 
ca within  the  time  therein  mentioned ;  or,  if  not,  what 
steps  must  be  taken  to  obtain  it  of  the  governors  in 
America  ? 

Queer e  2.- — Whether,  by  this  proclamation^  murders 
committed  by  such  pirates  are  pardoned  7 

Queer e  3. — Whether  the  persons  who  have  committed 
any  robberies,  or  piracies,  or  any  others,  by  that  title 
can  hold  the  monies  and  effects  they  may  be  so  possessed 
of,  and  not  liable  to  be  prosecuted  for  them  ? 

Qucere  4. — Whether,  if  any  persons  having  notice  of 
this  proclamation,  should,  -between  such  notice  and  the 
5th  of  January  next,  commit  any  piracies  or  robberies, 
are  entitled  to  the  benefit  of  it  7 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 

and  Plantations. 
68 


530  OPINIONS    OP    EMINENT    LAWYERS. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  we  have  considered  of  the  annexed 
quceries,  proposed,  to  us  by  your  Lordships ;  and  as  to 
the  first  gncere,  li  whether  the  proclamation  is  a  full 
and  sufficient  pardon  to  any  persons  who  may  have  com- 
mitted piracies  and  robberies  upon  the  high  seas  in 
America,  within  the  time  therein  mentioned,  or,  if  not, 
what  steps  must  be  taken  to  obtain  it  of  the  governors 
of  America,"  we  are  of  opinion,  that  the  proclamation 
does  not  contain  a  pardon  of  piracy,  but  only  his  Majes- 
ty's gracious  promise  to  grant  pirates  such  pardon  on 
the  terms  mentioned  in  the  proclamation,  on  which  eve- 
ry subject  may  safely  rely  ;  but,  that  it  will  be  reasona- 
ble for  his  Majesty  to  give  instructions  to  his  governors 
in  America,  to  grant  the  persons  surrendering  them- 
selves according  to  the  terms  of  such  proclamation,  his 
Majesty's  most  gracious  pardon  for  piracies  and  robberies 
on  the  high  seas. 

As  to  the  second  qu&re,  "  whether,  by  this  proclama- 
tion, murders  committed  by  such  pirates  are  pardoned," 
we  are  of  opinion,  that,  where  the  murder  is  committed 
in  the  piracy,  it  was  his  Majesty's  intention  to  pardon 
the  murder  so  committed,  and,  that,  therefore,  it  may 
be  reasonable,  in  the  instructions  to  his  Majesty's  gov- 
ernors, to  direct  them  to  insert  in  the  pardons  by  them 
to  be  passed,  of  the  piracies  and  robberies  committed  on 
the  high  seas,  a  pardon  of  all  murders  committed  in  the 
same. 

As  to  the  third  quaere,  "whether  the  persons  who  have 
committed  any  robberies,  or  piracies,  or  any  other  by 
that  title,  can  hold  the  monies  and  effects  they  may  be 
so  possessed  of,  and  not  be  liable  to  be  prosecuted  for 
them,"  we  are  of  opinion,  that  as  to  the  proper  goods  of 


OF  THE  COLONIAL  CONSTITUTIONS.         531 

the  pirates,  they  being  pardoned,  the  same  will  not  be 
forfeited,  but,  as  to  the  goods  of  other  persons  which 
they  have  taken  unlawfully  from  them,  the  property 
thereof  by  such  taking  is  not  altered ;  but  the  owners, 
notwithstanding  any  pardon,  may  retake  them,  or  they 
may  recover  the  same  by  an  action  to  be  brought  against 
the  robber  for  the  same. 

And  as  to  the  fourth  quare,  "  whether,  if  any  persons 
having  notice  of  this  proclamation,  should,  between  such 
notice  and  the  5th  of  January  next,  commit  any  pira- 
cies or  robberies,  are  entitled  to  the  benefit  of  it,  we  are 
of  opinion,  that  there  is  no  exception  of  any  notice  in 
the  proclamation,  and  his  Majesty  has  been  pleased  to 
give  his  royal  promise,  which  he  will  never  break,  to 
pardon  pirates  surrendering  themselves.  All  piracies  com- 
mitted, or  to  be  committed,  before  the  said  5th  day  of 
January,  and  for  preventing  the  mischiefs  hinted  at  in 
this  qucere,  his  Majesty's  officers  are  to  be  diligent  in  ap- 
prehending all  pirates,  for  his  Majesty  has  not  been 
pleased  to  promise  pardon  to  any  pirates  but  such  as  sur- 
render voluntarily,  according  to  the  terms  of  the  pro- 
clamation. 

November  14,  1717.  EDW.  NORTHEY. 

WM.  THOMSON. 

(12.)  The  opinion  of  the  Attorney-General  Northey 
on  appeal*  from  the  Admiralty  courts,  in  the  Colonies. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  annexed 
petition  of  Peter  Van  Bell,  praying  the  liberty  of-appeal 


532  OPINIONS  OF  EMINENT  LAWYERS. 

to  her  Majesty  in  council,  from  a  sentence  pronounced 
in  the  admiralty  court  of  Nevis.  And  am  of  opinion,  if 
that  court  was  held  under  the  late  King's  commission 
for  governing  the  Leeward  Islands,  as  the  petitioner 
takes  it  to  be,  alleging  that  the  president  and  council 
had  power  only  to  appoint,  but  not  to  sit  themselves  as 
a  court  of  admiralty ;  or,  if  the  sentence  was  given  by 
the  president  and  council  of  Nevis,  as  the  council  there, 
in  both  cases,  the  appeal  ought  to  be  to  her  Majesty  in 
council ;  -but  if  the  president  and  council  held  a  court  of 
admiralty,  by  authority  derived  from  the  admiralty  of 
England,  the  appeal  is  to  be  to  the.  court  of  admiralty  in 
England ;  and  so  it  was  lately  determined  by  her  Majes- 
ty in  council. 

May  23,  1704.  EDW.  NORTHEY. 

(13.)  The  opinion  of  the  Advocate- General,  Sir  Na- 
thaniel Lloyd,  on  the  same  subject. 
My  Lords ;  f 

In  further  obedience  about  the  Eagle  brigantine,  con- 
demned at  New  York,  and  appealed  upon  hither :  I  find 
that  the  appellants  have  thought  fit  to  drop  such  appeal, 
and  they  proceed  no  further ;  so  the  condemnation  stands. 
Not  but  that  the  appellants  might  have  re-heard  the 
cause  here,  had  they  thought  fit. 

For,  by  law,  appeals  do  lie  from  the  admiralty  courts 
in  the  plantations,  to  the  lord  high-admiral  of  Great 
Britain,  in  the  high  court  of  admiralty  of  England,  in 
common  maritime  causes. 

As  in  causes  of  prize,  properly,  as  taken  jure  belli,  to 
.the  lords  of  the  council,  as  commissioners  for  appeals,  in 
causes  of  prize,  by  the  American  act. 

March  13,  1715.  NATH.  LLOYD. 


OF  THE  COLONIAL  CONSTITUTIONS.         533 

(14.)  2he  Advocate-General,  /Sir  John  Cookers  opinion 
on  the  seizure  of  a  Spanish  brigantine,  on  the  high  seas, 
by  an  uncommissioned  vessel, 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  in  Mr. 
Popple's  letter  of  the  25th  of  February,  I  have  consider- 
ed the  proceedings  and  merits  of  the  seizure  of  the  Span- 
ish brigantine  therein  mentioned,  and  am  of  opinion,  that 
this  matter  ought  to  be  communicated  to  the  lord  high- 
admiral,  that  directions  may  issue  to  the  proper  officers 
to  proceed,  in  his  lordship's  name,  in  the  court  of  admir- 
alty here,  *n  order  to  have  the  brigantine  condemned, 
and  declared  a  perquisite  of  the  admiralty,  being  seized 
at  sea,  by  a  non-commissioned  ship. 

Doctors  Commons,  March  3,  1708.  J.  COOKE. 

Sixthly. — On  the  national  fisheries. 

(1.)  2he  opinion  of  the  Attorney-General,  Raymond, 
on  the  heads  of  a  patent  for  carrying  on  the  fishery  in 
1721. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships  commands,  signified 
to  me  by  Mr.  Popple,  the  26th  of  July  last,  to  send  my 
opinion,  in  point  of  law,  upon  the  draft  of  heads  of  a 
charter,  for  incorporating  Sir  Robert  Sinclair  and  oth- 
ers, for  the  better  carrying  on  the  fishing  trade  in  North 
Britain,  v  herewith  sent  back  to  your  Lordships,  I  have 
considered  thereof,  and  as  to  Nos.  1,  2,  and  3,  I  have  no 
objection  ;  as  to  No.  4,  [  should  think  it  proper  that  the 
elections  on  avoidances,  in  case  of  death  or  disqualifica- 


534  OPINIONS  OF  EMINENT  LAWYERS. 

tion,  should  be  appointed  to  be  made  within  a  certain 
time,  and  not  left  entirely  to  the  appointment  of  the  di- 
rectors, which  may  possibly  hereafter  introduce  incon- 
veniences. I  should  submit  it  likewise  to  your  Lord- 
ships, whether  it  would  not  be  proper  to  direct  the  no- 
tice therein  appointed  to  be  given,  to  be  published  in 
the  paper  printed  by  authority  of  the  government,  wheth- 
er it  is  called  the  Edinburgh  Gazette,  or  Courant,  or 
whatever  name  it  is  called  by,  rather  than  to  leave  it  so 
much  at  large,  as  to  be  inserted  in  one,  or  other,  of  the 
Edinburgh  newspapers ;  and  as  to  Nos.  5  and  6,  I  sub- 
mit to  your  Lordships,  whether  the  qualification  for  a 
voter,  or  of  the  governor,  sub-governor,  and  deputy-gov- 
ernor, is  not  too  small,  if  the  capital  stock  is  thought  fit 
to  be  allowed  to  be  so  great  as  600,000/. ;  as  to  Nos.  7,  8, 
9,  10,  12,  13,  14,  15,  I  have  no  objection  ;  as  to  No.  17, 
I  submit  to  your  Lordships,  whether  the  charter  should 
not  specify  what  should  be  the  consequence,  if  the  cor- 
poration should  borrow  more  on  their  bonds,  than  the 
value  of  the  real  estates  they  shall  have  purchased  ;  as 
to  Nos.  18,  19,  20,  I  have  no  objection  ;  as  to  21,  his 
Majesty,  by  the  laws  of  England,  by  his  letters  patent, 
cannot  make  bonds  assignable,  so  as  to  transfer  the  prop- 
erty to  the  assignee,  but  possibly,  by  the  laws  of  Scot- 
land, the  property  of  bonds  may  be  transferred  by  as- 
signment to  to  the  assignee,  of  which  the  gentlemen  of 
the  law  in  Scotland  are  by  much  the  properest  judges ;• 
as  to  No.  22,  I  have  no  objection :  as  to  No.  23, 1  doubt, 
by  the  laws  of  England,  the  King,  by  his  letters  patent, 
cannot  alter  the  course  of  descent  of  things,  and  make 
things  in  their  nature  personal  descend  to  the  heir;  but 
as  to  this  also,  the  laws  of  Scotland  may  be  different, 
which  the  gentlemen  of  the  law  in  Scotland  will  take 


OP  THE  COLONIAL  CONSTITUTIONS.  535 

care  to  settle  as  it  ought  to  be  by  that  law ;  No.  24  is 
the  usual  clause :  these  things  I  submit  entirely  to  your 
Lordships.  Upon  the  substance  of  the  heads,  as  to  the 
form,  there  is  no  doubt  but  the  lord-advocate  will  settle 
them  as  they  ought  to  be.  I  cannot  omit  mentioning  to 
your  Lordships,  that  when  the  lord-advocate  and  myself 
received  his  Majesty's  commands  to  consider  the  petition 
of  Sir  Robert  Sinclair,  and  the  other  gentlemen  for  this 
charter,  we  sent  a  copy  thereof  to  the  South  Sea  com- 
pany (as  had  been  done  formerly  in  cases  of  like  nature), 
to  know  if  they  had  any  objection  to  it,  who  returned 
us  an  answer,  that  they  had  no  objection  to  the  petition, 
but  they  desired  to  see  the  draft  of  the  charter  before  it 
passed.  I  cannot  but  observe  also,  that  by  the  act  of 
parliament  of  last  sessions,  which  established  the  com- 
panies for  insurances,  &c.  page  369,  it  is  enacted,  "  That 
no  person  should  be  entitled  to  any  greater  share  in  .the 
capital  or  nominal  stock  of  either  of  such  respective  cor- 
porations, than  the  money  which  he,  or  she,  or  they,  shall 
have  paid  towards  the  same,"  which  clause,  as  I  take  it, 
was  added  to  prevent  the  turning  them  into  bubbles, 
their  aversion  to  which,  as  the  petitioners  have  often  de- 
clared, so  I  apprehend  it  is  much  for  the  service  of  his 
Majesty  and  the  public  to  prevent ;  and  for  that  pur- 
pose, I  presume  to  put  your  Lordships  in  mind,  whether 
it  would  not  be  proper  to  have  a  clause,  that  no  trans- 
fer of  any  share  of  this  corporation  should  be  permitted, 
unless  it  is  made  within  some  short  limited  time,  to  be 
specified  in  the  charter,  after  the  contract  for  the  same 
shall  be  made. 

August  3,  1721.  ROB.  RAYMOND. 

(2.)  Mr.  Fands  opinion  of  ike  duties  on  whale  fins. 


536  OPINIONS  OP  EMINENT  LAWYERS. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter  of  the  18th  instant,  desiring 
my  opinion,  whether  the  indulgences  granted  by  the  act, 
passed  the  last  sessions  of  parliament,  entitled  "  an  act 
for  encouraging  the  Greenland  fishery  for  whale  fins,  oil, 
or  blubber  of  whales,  seal  oil,  seal  skins,  and  other  such 
commodities,  imported  into  Great  Britain  from  the 
Greenland  Seas,  Davis's  Straits,  or  any  other  parts  of 
the  seas  adjoining  or  adjacent  thereunto,"  do  extend  to 
all  the  like  commodities  imported  from  Newfoundland  : 
I  have  considered  the  said  act  of  parliament,  the  inten- 
tion of  which  was  to  encourage  the  fishery  carried  on  by 
the  South  Sea  company  to  Greenland,  and,  in  my  hum- 
ble opinion,  the  indulgences  granted  by  the  said  act  can- 
not be  construed  to  extend  further  than  to  the  commo- 
dities imported  from  the  parts  particularly  described  in 
the  said  act,  into  which  description  the  like  commodi- 
ties imported  from  Newfoundland,  I  apprehend,  cannot 
be  taken ;  besides,  I  observe  the  legislature  has  so  far 
restrained  it  to  the  parts  described  in  the  act,  that  an 
oath  is  directed  to  be  taken  by  the  master  of  every  ves- 
sel, upon  importation,  that  the  commodities  were  the 
produce  of  whales,  &c.  actually  caught  in  the  seas  par- 
ticularly mentioned  in  the  said  act. 

October  25,  1732.  FRAN.  FANE. 

(3.)  T/ie  Attorney-General  Yorkers  opinion,  on  the  pow- 
er of  the  justices  of  the  peace  in  Newjoundlandt 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 


OP  THE  COLONIAL  CONSTITUTIONS.  537 

May  it  please  your  Lordships ; 

In  pursuance  of  your  Lordships'  commands,  signified  to 
me  by  letter  from  Mr.  Popple,  transmitting  the  annexed 
copies  of  certain  qu&ries,  received  from  the  Right  Honor- 
able the  Lord  Vere  Beauclerk,  Commodore  for  the  New- 
foundland convoy,  and  Captain  Osborne,  Governor  of 
that  island,  together  with  a  copy  of  Captain  Osborne's 
commission,  and  of  that  granted  by  him  to  the  justices 
of  the  peace  there,  and  desiring  my  opinion  thereupon : 
I  have  considered  the  said  qu&ries,  and  upon  the  first 
thereof  do  conceive  that  the  justices  of  the  peace  had 
not  sufficient  authority  to  raise  money  for  building  a 
prison,  by  laying  a  tax  upon  fish  caught,  or  upon  fish- 
ing-boats, the  rather  because  the  act  of  the  10th  and  llth 
William  III.  for  encouraging  the  trade  to  Newfoundland, 
directs  that  it  shall  be  a  free  trade.  The  power  of  the 
justices  of  the  peace  in  England  for  building  of  gaols,  de- 
pends upon  the  statute  of  the  llth  and  12th  William 
III.  cap.  19.  by  which  they  are  enabled  to  make  an  as- 
sessment for  that  purpose  upon  the  several  divisions  of 
their  respective  counties,  after  a  presentment  made  by 
the  grand  jury  at  the  assizes,  great  sessions,  or  general 
gaol  delivery.  As  the  justices  of  the  peace  in  New- 
foundland are,  by  their  commissions,  to  act  according  to 
the  laws  of  England,  I  apprehend  they  ought  to  have 
pursued  this  act  of  parliament  as  near  as  the  circumstan- 
ces of  the  case  would  admit,  and  to  have  laid  the  tax  aft- 
er a  presentment  by  some  grand  jury,  upon  the  inhab- 
itants, and  not  upon  fish,  or  fishing-boats.  So  far  as  the 
people  have  submitted  to  this  tax,  there  may  be  no  oc- 
casion to  call  it  in  question,  but  I  cannot  advise  the  tak- 
ing of  rigorous  methods  to  compel  a  compliance  with  it. 

As  to  the  second  qucere,  if  any  persons  are  guilty  of 
69 


538  OPINIONS  OP  EMINENT  LAWYERS, 

assaulting  any  of  the  justices  of  the  peace  or  constables, 
or  of  actual  resistance  to  their  authority,  they  may  be 
indicted  for  such  offences  at  the  quarter  sessions,  and 
punished  by  fine  or  imprisonment ;  but  for  contemptu- 
ous words  spoken  of  the  justices  or  their  authority,  they 
can  only  be  bound  to  their  good  behavior.  Offences  by 
destroying  the  stocks,  or  whipping-posts,  are  indictable, 
and  may  be  punished  by  imprisonment  or  fine,  or  partly 
by  the  one,  and  partly  by  the  other;  and  his  Majesty's 
may  direct  the  fines  to  be  applied  to  make  good  such 
stocks  or  whipping-posts. 

As  to  the  third  quaere,  I  am  of  opinion  that  the  justi- 
ces of  the  peace  cannot  decide  differences  relating  to 
property,  and  that  their  power  is  restrained  to  the  crim- 
inal matters  mentioned  in  their  commission, 

As  to  the  fourth  qu&re,  I  am  of  opinion,  that  neither 
Captain  Osborne,  nor  the  justices  of  the  peace,  have 
power  to  raise  any  tax  for  repairing  churches,,  or  any 
other  public  works,  except  such  works  for  which  power 
is  given  to  justices  of  the  peace  in  England  to  levy  mon- 
ey, by  particular  acts  of  parliament.  As  to  any  tax  for 
building  a  prison,  it  is  answered  under  the  first  quccre. 

Captain  Osborne's  instructions  not  having  been  laid 
before  me,  I  cannot  judge  what  powers  are  thereby  giv- 
en to  him,  but  I  presume  that  no  power  is  comprised  in 
those  instructions,  of  imposing  taxes  in  general,  without 
the  consent  of  some  assembly  of  the  people. 

April  27,  1730.  P.  YORKE. 

(4.)  Ihe  same  laivyer's  opinion  on  the  powers  of  the 
several  officers  at  Newfoundland. 

To  the  King's  most  excellent  Majesty. 
May  it  please  your  Majesty. 


OP  THE  COLONIAL  CONSTITUTIONS.        539 

In  humble  obedience  to  your  Majesty's  commands, 
signified  to  me  by  his  Grace  the  Duke  of  Newcastle, 
your  Majesty's  principal  secretary  of  state,  referring  to 
me  an  extract  of  the  commission  to  Captain  Osborne, 
Governor  of  Newfoundland,  so  far  as  relates  to  the  au- 
thority and  direction  thereby  given  to  him,  to  appoint 
justices  of  the  peace  in  the  several  districts  of  that 
colony,  and  an  extract  of  a  letter  received  from  him, 
with  copies  of  two  papers  therein  referred  to,  (all  which 
are  hereunto  annexed,)  by  which  it  might  appear  how 
he  is  obstructed  in  the  execution  of  your  Majesty's  com- 
mands to  him  in  this  respect,  and  particularly,  that  it 
is  pretended  to  be  contrary  to  the  act  of  parliament  for 
encouraging  the  fishery  of  Newfoundland,  and  directing 
me  particularly  to  take  that  act  into  consideration,  and 
report  to  your  Majesty  how  the  law  stands  in  this  point, 
and  whether  there  is  any  foundation  for  that  objection, 
or  any  interfering  between  the  powers  given  by  the 
act  to  the  fishing  admirals,  and  the  authorities  which 
justices  of  peace,  in  the  manner ,  they  are  established 
here,  are  invested  with  by  their  commission  :  I  have 
considered  the  said  annexed  papers,  and  also  the  act  of 
parliament  above  mentioned,  which  was  made  in  the  10th 
and  llth  years  of  the  reign  of  his  late  Majesty,  King 
William  III. ;  and  I  humbly  certify  to  your  Majesty, 
that  by  the  said  act,  it  is  enacted  "  That  the  admirals 
of  and  in  every  port  and  harbor  of  Newfoundland,  for 
the  time  being,  be,  and  are,  thereby  authorized  and  re- 
quired (in  order  to  preserve  peace  and  good  government 
amongst  the  seamen  and  fishermen,  as  well  in  their  re- 
spective harbors  as  on  the  shore,)  to  see  the  rules  and  or- 
ders in  the  said  act  contained,  concerning  the  regula- 
tion of  the  fishery  there  duly  put  in  execution ;  and 


540  OPINIONS  6P  EMINENT  LAWYERS. 

that  in  case  any  difference  or  controversy  shall  arise  in 
Newfonndland,  or  the  islands  thereunto  adjoining,  be- 
tween the  masters  of  fishing-boats  and  the  inhabitants 
there,  or  any  by-boat-keeper,  for,  or  concerning,  the 
rights  and  property  of  fishing-rooms,  stages,  flakes,  or 
any  other  building  or  conveniency  for  fishing  or  curing 
of  fish  in  the  several  harbors  or  coves,  the  said  differ- 
ences, disputes,  or  controversies,  shall  be  judged  and  de- 
termined by  the  fishing  admirals  in  the  several  harbors 
and  coves ;';  and  in  case  any  of  the  said  masters  of  fish- 
ing-ships, by-boat-keepers,  or  inhabitants,  shall*  think 
themselves  aggrieved  by  such  judgment  or  determina- 
tion, and  shall  appeal  to  the  commanders  of  any  of  your 
Majesty's  ships  of  war,  appointed  as  convoys  for  New- 
foundland, the  said  commander  is  hereby  authorized 
and  empowered  to  determine  the  same,  pursuant  to  the 
regulation  in  the  said  act. 

These  are  all  the  clauses  in  the  said  act  of  parlia- 
ment which  relate  to  the  present  question,  whereby  it 
appears  that  the  whole  authority  granted  to  the  fishing 
admirals  is  restrained  to  the  seeing  the  rules  and  orders, 
contained  in  that  act  concerning  the  regulation  of  the 
fishery  there,  duly  put  in  execution,  and  to  the  determi- 
nation of  differences  arising  between  the  masters  of 
fishing-boats  and  the  inhabitants,  or  any  by-boat-keeper, 
touching  the  right  and  property  of  fishing-rooms,  stages, 
flakes,  or  any  other  building  or  conveniency  for  fishing 
or  curing  of  fish,  in  the  several  harbors  or  coves  of 
Newfoundland,  which  is  a  kind  of  civil  jurisdiction  in 
particular  cases  of  property ;  whereas  the  authority  of 
justices  of  the  peace  extends  only  to  breaches  of  the 
peace,  and  other  criminal  matters,  and  therefore,  I  am 
humbly  of  opinion  that  the  powers  granted  by  your  Maj- 


OP  THE  COLONIAL  CONSTITUTIONS.        541 

esty  to  captain  Osborne,  to  constitute  justices  of  the 
peace  in  Newfo midland ,  is  not  contrary  to,  or  inconsis- 
tent with,  any  of  the  provisions  in  the  said  act ;  and 
that  there  is  no  interfering  between  the  powers  given 
by  that  act  to  the  fishing  admirals,  and  the  authorities 
which  justices  of  the  peace  are  invested  with  by  their 
commission. 

December  29,  1730.  P.  YORKE. 

(5.)  Ihe  opinion  of  the  Attorney-General,  Ryder,  on 
the  King's  power  to  erect  courts  of  justice  at  Newfound- 
land. 

To  his  Grace  the  Duke  of  Bedford. 
May  it  please  your  Grace. 

In  obedience  to  your  Grace's  commands,  signified  to 
me  by  your  Grace's  letter  of  the  23d  instant,  setting 
forth  that  your  Grace  had  laid  before  the  King  a  letter 
which  you  had  received  from  Captain  Rodney,  late  Gov- 
ernor of  Newfoundland,  wherein  he  desires  at  the  re- 
quest  of  the  principal  inhabitants  of  that  island,  that 
your  Grace  would  move  his  Majesty  in  their  behalf,  that 
power  may  be  granted  to  take  cognizance  of  capital 
crimes  there;  his  Majesty  had  thereupon  been  pleased 

• 

to  command  your  Grace  to  transmit  to  me  an  extract  of 
the  said  letter,  that  I  should  consider  of  the  request  of 
the  said  inhabitants,  and  report  to  your  Grace  my  opin- 
ion for  his  Majesty's  information,  in  what  manner  I 
think  his  Majesty  may  comply  with  their  request,  con- 
sistent with  the  13th  article  of  the  act  of  parliament  of 
the  10th  and  llth  of  the  reign  of  the  late  King  William, 
for  the  trial  of  persons  guilty  of  capital  crimes  in  the 
said  island,  in  any  shire  or  county  in  England,  a  copy  of 
which  article  your  Grace  was  pleased  to  inclose  :  I  have 


.     542  OPINIONS  OF  EMINENT  LAWYERS. 

perused  and  considered  the  act  of  the  10th  and  llth  of 
King  William  III.  and  the  inclosed  extract  from  Captain 
Rodney's  letter,  and  am  of  opinion  that  his  Majesty  has 
a  prerogative  and  right  to  erect  courts  of  justice  in  New- 
foundland for  the  trial  and  punishment  of  all  sorts  of 
crimes  committed  there,  and  that  the  act  of  10th  and 
llth  of  King  William  III.  does  not  take  away  or  affect 
that  prerogative,  so  that  his  Majesty,  notwithstanding 
that  act,  may  erect  and  constitute  such  court  there  for 
the  <  rial  of  capital  and  other  crimes  as  his  Majesty  shall, 
in  his  royal  wisdom,  think  proper. 

I  would  only  take  the  liberty  of  informing  your  Grace,, 
that  about  the  year  1738,  this  matter  was  taken  into 
consideration  by  the  board  of  trade,  in  pursuance,  I  be-^ 
lieve,  of  some  reference  to  them  from  his  Majesty,  or  a 
committee  of  council ,  and  the  board  did  make  a  report 
concerning  it,  after  having  taken  the  opinion  of  myself,, 
and  his  honor  the  present  master  of  the  rolls,  the  then 
attorney  and  solicitor-general,  in  which  report  they  pro- 
posed inserting  into  the  commission  to  the  next  govern- 
or of  Newfoundland,  a  clause  to  empower  the  governor- 
to  erect  a  court  of  justice  there,  to  the  same  effect  as  is 
inserted  -into  the  commission  to  other  governors  of  his 
Majesty's  American  commission  governments;  but  that 
clause  coming  afterwards  to  be  considered  in  council, 
was  rejected,  as  I  have  been  informed. 

January,  30,  1749.  D.  RYDER. 

(6.)  Thz  opinion  of  tlie  Attorney-General,  Ryder, 
that  the  King  could  not  give  power  to  establish  a  criminal 
court  at  Newfoundland,  out  under  the  great  seal. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 


OF  THE  COLONIAL  CONSTITUTIONS.  543 

My  Lords ; 

I  have  perused  and  considered  the  several  papers  your 
Lordships  were  pleased  to  transmit  to  me,  with  Mr.  Hill's 
letter  of  the  26th  instant,  desiring  my  opinion,  wheth- 
er a  power  to  take  cognizance  of  capital  crimes  in  New- 
foundland can  be  granted  to  the  governor  of  that  coun- 
try by  instruction  only,  signed  by  his  Majesty  in  coun- 
cil, or  whether  it  ought  to  be  inserted  in  his  commission 
under  the  great  seal ;  and  whether,  if  such  power  must 
be  inserted  in  the  commission -}  the  words  proposed  for. 
that  purpose  in  the  year  1738,  and  which  were  sent  me, 
are  proper :  I  am  of  opinion,  such  power  cannot  be  grant- 
ed by  instruction,  or  any  otherwise  than  under  the  great 
seal,  and,  therefore,  if  though  b  advisable  to  be  granted 
at  all,  ought  to  be  inserted  in  the  governor's  commis- 
sion ;  but  the  manner  of  his  exercising  such  power  may 
be  prescribed  and  limited  by  instructions,  for  any  breach 
of  which  he  will  be  answerable  to  his  Majesty. 

The  form  of  words  in  the  inclosed  extract  from  the 
draft  of  a  commission  in  1738,  is,  I  think,  proper  for  the 
purpose,  excepting  that  neither  the  power  of  trying,  nor 
that  of  pardoning  treasons,  appear  to  me  fit  to  be  in- 
trusted to  the  governor,  or  a  court  to  be  erected  by 
him. 

March  27,  1750.  D.  RYDEH, 

(7.)  The  opinion  of  the  same  lawyer,  in  pursuance  of 
the  former,  that  the  King  may  instruct  his  Governor  of 
Newfoundland,  to  cause  to  be  executed  such  persons  as 
might  be  convicted  of  capital  crimes,  except  treason. 

To  the  Right  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 


644  OPINIONS  OF  EMINENT  LAWYERS. 

In  obedience  to  your  Lordships'  desire,  signified  to  me 
by  Mr.  Hill's  letter  of  the  8th  instant,  setting  forth  that 
frequent  complaints  having  been  heretofore  made  by  the 
commanders  of  his  Majesty 's  ships  stationed  at  New- 
foundland, of  the  great  disorders  committed  on  that  is- 
land for  want  of  courts  of  oyer  and  terminer,  for  the 
trial  of  capital  offences  committed  there,  it  was  the  last 
year  thought  advisable  (after  my  opinion  had  thereup- 
on) to  insert  a  clause  in  the  commission  prepared  for 
Captain  Drake,  empowering  him  to  appoint  commission- 
ers of  oyer  and  terminer  for  the  trial  of  such  capital  of- 
fences, which  power  was  limited  by  an  instruction, 
whereby  the  governor  was  directed  not  to  suffer  any 
criminal  to  be  deprived  of  life  or  limb  by  any  sentence 
of  such  court,  until  his  Majesty's  pleasure  was  known. 

That  Captain  Drake,  in  a  letter  to  your  Lordships, 
dated  the  26th  of  December  last,  takes  notice  that  this 
power,  given  him  by  his  commission,  had  had  a  very 
good  effect  in  putting  a  stop  to  the  disorders  and  mur- 
ders which  had  been  committed ;  but  represents  that  un- 
less power  is  granted  to  execute  in  cases  of  necessity,  it 
will  be  impossible  to  bring  the  offenders  to  the  punish- 
ment due  to  their  crimes,  for  as  there  is  no  prison  of  suf- 
ficient strength  to  confine  them  in  during  the  winter 
season,  they  will,  undoubtedly,  be  rescued  by  their  com- 
•panions  as  it  has  been  frequently  the  case  ;  or  should 
they  remain  in  prison,  they  must  be  destroyed  by  hun- 
ger and  the  excess  of  cold. 

Your  Lordships,  therefore,  desire  my  opinion  upon 
this  affair,  and  whether  I  have  any,  and  what  objection, 
to  giving  the  governor  a  power  of  executing  criminals 
convicted  of  capital  offences,  when  he  sees  just  cause,  as 
well  as  of  trying  such  offences :  I  have  considered  the 


OP  THE  COLONIAL  CONSTITUTIONS.  545 

matter,  and  have  no  objection,  in  point  of  law,  to  the 
giving  the  governor  such  power  as  is  proposed  with  re- 
spect to  capital  offences  ;  but  it  does  not  seem  proper  to 
extend  it  to  treason,  nor  to  the  case  of  the  officers  of  his 
own  ship,  or  of  any  of  the  trading  ships  that  shall  be 
there. 

May  16, 1751;  D.  RYDER. 

(8.)  The  opinion  of  the  Advocate,  Attorney,  and  Solic- 
itor-General, Hay,  Norton  and  De  Gny,  how  far  the 
King's  power  was  limited  at  Newfoundland,  by  the  stat- 
ute of  King  William. 

To  the  llight  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Pownall's  letter,  dated  the  28th  day  of 
February  last,  inclosing  a  project  of  arrangements  pro- 
posed by  the  ambassador  of  France,  to  be  reciprocally 
agreed"  to  by  the  crowns  of  Great  Britain  and  France, 
for  avoiding  any  disturbance  or  dispute  between  the 
English  and  the  French  who  carry  on  a  concurrent  fish- 
ery on  the  coast  of  Newfoundland,  and  signifying  to  us 
your  Lordships'  pleasure,  that  we  should  give  our  opin- 
ions, as  soon  as  possible,  upon  the  following  quceries : — 
1st.  Whether  the  articles  of  this  project  are  consistent 
with  the  act  of  parliament  of  the  tenth  and  eleventh  of 
William  the  Third,  cap.  25.  to  encourage  the  trade  to 
Newfoundland?  2d.  Whether  the  Crown  can  legally 
enter  into,  and  has  any  power  to  enforce  such  regula- 
tions as  are  contained  in  the  several  articles  of  this  pro- 
ject, so  far  as  they  relate  to  the  subjects  of  Great  Britain, 

either  in  the  substance  of  the  said  articles,  or  in  the 

70 


546  OPINIONS    OF  EMINENT    LAWYERS, 

mode  of  carrying  them  into  execution  1  We  have  taken 
Mr.  Pownall's  letter,  and  the  two  qucerics  therein  stated, 
and  the  project  sent  therewith,  and  hereunto  annexed, 
into  our  consideration,  and  are  humbly  of  opinion,  1st, 
That  the  articles  of  this  project  are  not  consistent  with 
the  act  of  the  tenth  and  eleventh  of  William  the  Third, 
cap.  25.  for  'the  encouragement  of  the  trade  to  New- 
foundland, the  same  containing  regulators  and  restric- 
tions, in  several  instances,  contrary  to  the  provisions  of 
that  act,  as  well  in  respect  to  the  rights  of  his  Majesty's 
subjects,  as  to  the  mode  of  determining  controversies 
arising  there.  2d.  We  humbly  conceive  that  the  Crown 
cannot  legally  enter  into,  nor  has  power  to  enforce  such 
regulations,  the  same  being  contrary  to  the  statute  of 
King  William,  as  far  as  they  relate  to  the  subjects  of 
Great  Britain,  either  in  the  substance  of  them,,  or  in  the 
mode  of  carrying  them  into  execution. 

G.  HAY. 
F.  NORTON. 
WM.  DE  GREY. 
Lincoln's  Inn,  March  6,  1764. 

(9.)  Ilie  opinion  of  the  Attorney  and  Solicitor-Gener- 
al, Sawyer  and  JFi?ickt  on  the  Eastland  and  Greenland 
Companies. 

Whitehall,  Nov.  23,  1681. 
Sir: 

I  send  here  inclosed  the  scheme,  which  the  Lords  of 
the  Committee  of  Trade  and  Plantations  expect  to  have 
answered  within  a  month,  and  so,  from  time  to  time,  ac- 
cording to  the  promise  you  and  the  other  officers  of  the 
customs  have  made  their  Lordships. 

W.  B. 


OP  THE  COLONIAL  CONSTITUTIONS.  547 

Sir: 

I  have  considered  of  the  case  in  difference  between 
the  Greenland  and  Muscovy  companies,  and  of  the  pa- 
pers you  sent  from  the  lords  of  the  committee  for  trade, 
amongst  which  I  find  my  opinion  given  long  since.  In 
the  case,  I  find  no  material  difference  in  the  cases,  as 
stated  by  both  companies  to*  their  counsel ;  and,  upon 
review  of  my  opinion,  which  I  have  there  given  at  large, 
and  to  which  I  crave  leave  to  refer,  I  see  no  cause  to 
alter  it  in  either  point,  but  am  rather  confirmed  in  it, 
upon  perusal  of  the  opinion  given  by  the  counsel  on  be- 
half of  the  Greenland  company,  who  seem  not  to  have 
weighed  the  whole  design  of  the  act,  which  was  to  re- 
trieve a  decayed  trade,  not  to  overthrow  a  settled  known 
trade,  which  if  the  act  had  in  the  least  intended,  it 
would  have  been  done  in  more  plain  and  express  words ; 
besides  those  opinions  do,  by  way  of  supposition,  pre- 
sume, that  ships  or  vessels  are  used  in  taking  of  the 
seals,  which  in  fact  is  not  so,  which  I  humbly  submit  to 
their  lordships'  judgment. 

Dec.  15,  1681.  R.  SAWYER. 

Though  I  was  once  inclined  to  think,  that  the  seal 
oil,  imported  by  the  Muscovia  company,  was  liable  to 
pay  the  9£  per  ton,  and  did  give  some  opinion  that  way, 
yet  upon  better  consideration  of  the  act,  and  the  circum- 
stances of  the  case,  I  believe  Mr.  Attorney  is  in  the 
right,  and  that  they  are  not  within  the  act. 

H.  FINCH. 

Seventhly. — On  Commerce. 

This  head  may  be  divided  into  the  four  following  di- 
visions ;  1.  Manufactures  set  up  abroad ;  2.  The  acts  of 
navigation ;  3.  Miscellaneous  matters  of  trade  ;  4.  Coins. 


548  OPINIONS    OP  EMINENT  LAWYERS. 

I.  (1.)  2he  opinion  of  the  Solicitor-General  2homsony 
on  tJie  Kings  prerogative  of  prohibiting  his  subjects  f ram 
going  abroad. 

Sir; 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners of  Trade  and  Plantations,  signified  by  yours  re-^ 
ceived  this  day,  I  have  perused  the  letters  therein  in- 
closed. The  King  may  prohibit  his  subject  from  going 
out  of  the  realm  without  license,  and  the  5th  of  Rich- 
ard  II.  cap.  2d.  forbids  all  persons  to  depart  the  realm 
without  license,  except  those  sort  of  persons  mentioned 
therein.  As  to  the  particular  persons  intending  to  go 
abroad,  a  writ  will  be"  granted  from  the  chancery,  upon 
a  suggestion  of  such  intention,  to  prohibit  them  from  go- 
ing abroad,  and  security  may  be  required  by  virtue  there-? 
of,  that  they  will  not  depart  the  realm  without  licensea 
which  if  they  refuse,  they  may  be  committed  till  suffi- 
cient security  is  found.  As  to  those  already  abroad,  if 
they  are  required  by  proclamation  to  return  home,  and 
do  not  obey,  I  do  not  know  of  any  method  of  getting  at 
them  by  any  process  abroad  ;  but  it  is  proper  that  the 
King's  minister,  residing  in  the.  country  where  they  in- 
habit, do  require  that  they  may  be  made  to  depart  that 
country,  in  order  to  their  return. 

November  12,  1718.  WM.  THOMSON. 

(2.)  Mr.  Westfs  opinion  itpon  establishing  British 
manufactures  in  France. 

To  the  Right  Hon.  theLord,s  CommissionersofTra.de 
and  Plantations. 
My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to,  me  by  Mr.  Popple,  I  have  perused,  and  considered  the 
several  letters  relating  to  the  establishing  several  man^ 
factuures,  in  foreign  parts,  by  British  artificers ;  but,  aa 


OF  THE  COLONIAL    CONSTITUTIONS.  549 

the  case  is  not  particularly  stated  unto  me,  it  will  not 
be  possible  for  me  to  give  a  direct  answer  to  the  ques- 
tion proposed,  I  shall  therefore  beg  leave  of  your  Lord- 
ships to  consider  it  something  at  large,  and  to  lay  down 
some  general  positions,  which  I  take  to  be  agreeable  to 
the  law  of  England  ;  a  right  application  of  which,  I  be- 
lieve, will  in  a  great  measure  amount  to  an  answer  to 
such  inquiries  as  may  be  made, 

1.  That  particular  subjects  should  have  an  uncontrol- 
able  liberty  of  all  manner  of  trading,  is  not  only  against 
the  policy  of  our  nation,  but  of  all  other  governments 
whatsoever,  I  do,  therefore,  take  it  to  be  law,  that  the 
Crown  may,  upon  special  occasion,  and  for  reasons  of 
state,  restrain  the  same ;  and  that  not  only  in  cases 
of  war,  plague,  or  scarcity  of  any  commodity,  of  more 
necessary  use  at  home,  for  the  provision  of  the  subject, 
or  the  defence  of  the  kingdom,  &c.  (in  which  cases  the 
King's  prerogative  is  allowed  to  be  beyond  dispute,)  but 
even  for  the  preservation  of  the  balance  of  trade :  as, 
suppose  a  foreign  prince,  though  in  other  respects  pre- 
serving a  fair  correspondence  and  in  amity  with  us,  yet 
will  not  punctually  observe  such  treaties  of  commerce 
as  may  have  been  made  between  the  two  nations  ;  or, 
in  case  there  are  no  such  treaties  existing,  refuses  to  en- 
ter into  such  a  regulation  of  trade  as  may  be  for  the  mu- 
tual advantage  and  benefit  of  both  dominions  :  on  such 
occasion,  I  am  of  opinion  that  the  King,  by  his  preroga- 
tive, may  prohibit  and  restrain  all  his  subjects  in  gener- 
al, from  exporting  particular  commodities,  &c. ;  or  else, 
generally,  from  trading  to  such  a  particular  country  or 
place;  since  trade  does  not  only  depend  upon  the  will 
or  laws  of  the  prince,  whose  subjects  adventure  abroad 
to  carry  it  on,  but  also  of  that  prince  into  whose  country 


550  OPINIONS     OF    EMINENT    LAWYERS. 

the  commodities  arc  exported,  and  with  whose  subjects 
commerce  is  negotiated  and  contracted  ;  without  such  a 
power,  it  is  obvious  that  the  government  of  England 
could  not  be  upon  equal  terms  with  the  rest  of  its  neigh- 
bors, and  since  trade  depends  principally  upon  such  treat- 
ies and  alliances  as  are  entered  into  by  the  Crown  with 
foreign  princes ;  and,  since  the  power  of  entering  into 
such  treaties  is  vested  absolutely  in  the  Crown,  it  nec- 
essarily follows  that  the  management  and  direction  of 
trade,  must,  in  a  great  measure,  belong  to  the  King. 

2.  Things  of  this  nature  are  not  to  be  considered 
strictly  according  to  those  municipal  laws,  and  those  or- 
dinary rules,  by  which  the  private  property  of  subjects 
resident  within  the  kingdom  is   determined;  but  a  re- 
gard must  also  be  had  to  the  laws  of  nations,  to  the  pol- 
icy and  safety  of  the  kingdom  ;    the  particular  interest 
and  advantages  of  private  men  must,  in  such  cases,  give 
way  to  the  general  good ;  and  acting  against  that,  though 
in  a  way  of  commerce,  is  an  offence  punishable  at  the 
common  law. 

3.  Foreign   trades  carried  on   by  particular  subjects 
for  their  private  advantage,  which  are  really  destruct- 
ive unto,  or  else  tending  to  the  general  disadvantage  of 
the  kingdom,  are  under  the  power  of  the  Crown  to  be 
restrained  or  totally  prohibited.     There  may  be  a  pro- 
hibition of  commerce  without  open  enmity,  as  an  actual 
declaration  of  war,  and  particular  subjects,  who,  for  pri- 
vate gain,  carry  on  a  trade  abroad,  which  causes  a  gen- 
eral prejudice  or  loss  to  the  kingdom,  considered  as  an 
entire  body,  in   doing  so,  manifestly  act    against  the 
public  good,   and  ought  not  only  to  be  prohibited,  but 
punished.     Carrying  on  such  trades,  is,  in  truth,  (what 
some  acts  of  parliament  have   declared  some   trades  to 


OF  THE  COLONIAL  CONSTITUTIONS.        551 

be,)  being  guilty  of  common  nuisances :  and  if  the  Crown, 
which  in  its  administration  of  government  is  to  regard 
the  advantage  of  the  whole  realm,  should  not  be  invest- 
ed with  sufficient  power  to  repress  and  restrain  such 
common  mischiefs,  it  has  not  a  power  to  do  right  to  all 
its  subjects.  If  the  public  mischiefs,  from  such  a  way 
of  trading,  be  plain  and  evident,  there  is  the  same  rea- 
son for  restraining  particular  persons  from  carrying  on 
a  trade  that  draws  such  consequences  after  it,  (though 
it  be  a  trade  that  of  itself  is  not  prohibited  by  arry  par- 
ticular law)  as  there  is,  that  a  private  subject  shall  not 
make  such  an  use  of  his  own  house  or  land  (in  which  he 
has  an  absolute  propriety  and  a  legal  title  to  it),  as  will 
turn  to  the  common  annoyance  and  public  detriment  of 
the  rest  of  the  kingdom. 

4.  The  general  trade  of  the  nation,  and  the  maintain- 
ing of  the  customs  and  duties  granted  to  the  Crown  for 
the  support  of  it,  are  things  of  so  public  a  concern,  that 
whatsoever  has  a  direct  and  evident  tendency  to  the 
discouragement,  and  disadvantage  of  the  one,  or  to  the 
diminution  of  the  other,  is  a  crime  against  the  public. 
As  an  instance  of  which,  I  shall  mention  it  as  a  kind  of 
precedent,  that  raising  and  spreading  a  story,  that  wool 
would  not  be  suffered  to  be  exported  upon  such  a  year, 
(probably  by  some  stock-jobbers  in  those  times),  where- 
by the  value  of  wool  was  beaten  down,  though  it  did  not 
appear  the  defendants  reaped  any  particular  advantage 
by  the  deceit,  was,  upon  the  account  of  its  being  an  in- 
jury to  trade,  punished  by  indictment,  and  a  confedera- 
cy, without  any  further  act  done,  to  impoverish  the  far- 
mers of  the  excise,  and  lessen  the  duty  itself,  has  been 
held  an  offence,  punishable  by  information.  If,  there- 
fore, the  consequence  of  this  present  undertaking  should 


552  OPINIONS  OP  EMINENT  LAWYERS. 

prove  what  is  apprehended  from  it,  there  can  bfe  no 
doubt  but  that  the  Crown  has  so  much  interest  and  con- 
cern for  the  trade  of  the  nation  and  its  own  revenue,  as 
to  be  able  to  put  a  stop  to  the  carrying  on  a  thing  so 
mischievous  to  the  one  and  the  other,  by  the  advice  and 
assistance  of  his  Majesty's  own  subjects. 

5.  As  to  the  particular  subjects  so  employed  abroad, 
there  is  no  doubt  but  that  the  King,  by  his  prerogative, 
may  restrain   them;  it  is  agreed  011  all  hands,  that  the 
statute  of  fugitives  is  but  an  affirmance  of  the  common 
law.     That  the  Crown  may,  at  its  discretion,   require 
the  personal  presence  and  attendance  of  the  subject,  lest 
the  kingdom  should  be  disfurnished  of  people  for  its  de- 
fence, as  it  is  said  in  some  books  ;  and  not  only  so,  but 
upon  a  suspicion  or  jealousy  that  he  is  going  abroad. 
Ad  quam  plurima  nobis  et  quam  pluribis  de  populo  nos- 
tro  prejudicialia  et  damnosa  ibm  prosequenda,  (as  the  writ, 
framed  upon  that  occasion,  expressed  it).     The  Crown 
iSj  by  law?  entrusted   to  judge  what  things  those  are, 
which  shall  be  looked  upon  to  be  mischievous  and  pre- 
judicial to  the  Crown  and  people,  and  what  caution  is 
to  be  taken  against  them;  and  by  that  writ  it  appears, 
it  is  equally  criminal  to  do  any  thing  of  that  kind  by 
any  other  hand,  as  to  do  it  personally  himself:  and, 
therefore,  after  the  writ  has  commanded  his  not  going 
abroad,  it  adds,  nee  qui  quicquani  ibm  proscqui  allempteSj 
sen  altemptarl  facias,  quod  in  nostrum  seu  diet®  coronce 
nostrce  prejudicum  cedere  valeat  quovi-s  modo :    nee  afc 
quern  ibm  mitlas  exhac  causa. 

6.  Upon  the  very  foot  of  trade  itself,  it  is  necessary 
that  the  Crown  should  have  a  power  over  the  persons 
and  dealings  of  their  subjects  in  foreign  parts.     By  the 
law  of  nations,  a  government,  if  they  have  no  other  re- 


OF  THE  NATIONAL  COMMERCE,  553 

dress,  take  goods  from  any  of  the  same  nation,  by  way 
of  reprisal  for  injustice  done  by  one  of  the  nations.  So 
that  Englishmen  suffered  to  reside  abroad,  by  their  mis- 
behavior may  endanger  more  than  their  own  persons 
and  estates,  But,  as  the  stating  to  your  Lordships,  the 
power  which  the  Crown  has  to  prohibit  the  subject  from 
going  abroad,  when  there  is  reason  to  suspect  that  de- 
signs prejudicial  to  the  kingdom  are  carrying  on  alone, 
is  not  sufficient  to  answer  your  Lordships'  purpose,  I 
shall  beg  leave  to  remind  your  Lordships  of  a  case  par- 
allel to  this,  which  has  already  had  a  determination  at 
the  board :  anno  one  thousand  seven  hundred  and  five, 
several  English  merchants  were  concerned  in  a  design  to 
set  up  the  manufacturing  of  tobacco  in  Russia,  to  which 
purpose  they  had  carried  over  the  necessary  workmen 
and  instruments  ;  but,  upon  application  to  the  board  of 
trade,  the  then  lords  commissioners  did  represent  it  to 
the  Queen  in  council,  as  their  opinion,  that  the  persons 
who  had  been  already  sent  to  Moscow,  might  be  recalled 
by  letters  of  privy  seal,  directed  to  her  Majesty's  envoy 
for  that  purpose  ;  andj  that  the  engines  and  materials  of 
working  should  be  broken  and  destroyed  in  the  presence 
of  the.  said  envoy ;  and,  that  the  persons  at  home,  who 
were  concerned  in  sending  the  said  workmen  over,  should 
be  enjoined  not  to  send  over  any  more  workmen  or 
materials,  &c. 

Upon  inquiry,  my  Lords;  I  am  informed  that  the  said 
works  and  materials  were  actually  destroyed  in  Russia, 
and  the  workmen  sent  back  again  by  the  direction  of 
the  envoy,  who  took  the  advantage  of  the  Czar's  absence 
from  the  place  where  they  were  established.  What  was 
then  done,  may  certainly  be  repeated.  It  is  not  the  bus- 
iness of  a  lawyer  to  consider  how  such  a  method  of  pro- 
71 


554  bPINIONS  OF  EMINENT  LAWYERS. 

ceeding  may  be  relished  by  a  foreign  court ;  but  only  to 
give  it  as  his  opinion,  that  it  may  be  justified,  as  against 
particular  subjects  who  are  guilty  of  so  high  a  crime 
against  their  country, 
.Dec.  5,  1718.  RICH.  WEST. 

(3.)  Ihe  opinion  of  t7ie  Attorney-General  Macdonald, 
Tiowfar  the  King  may  restrain  liis  subjects  from  going 
abroad. 

A  case  of  so  much  importance  as  the  present,  and 
not  very  frequently  occurring,  would  require  more  in- 
vestigation than  the  unavoidable  shortness  of  the  time 
permits  me  to  make ;  nevertheless,  certain  established 
principles  furnish  conclusions  which,  in  my  judgment, 
forcibly  apply  to  it. 

The  question  must  be,  first,  Whether  the  British  sea- 
men found  on  board  of  the  Friendship,  have  committed 
any,  and  what  offence,  and  how  it  is  punishable  1  Second- 
ly, Whether  Brough,  Taylor,  and  Rising,  have  com- 
mitted any,  and  what  offence,  and  how  that  is  punisha- 
ble 1  Thirdly,  Whether,  in  case  an  action  should  be 
brought  on  account  of  the  detention,  there  be  a  good 
defence  to  it  1  As  to  the  first,  disobedience  to  the  King's 
lawful  commands,  is,  by  the  common  law,  an  high  mis- 
prision  and  contempt,  punishable,  upon  indictment  or 
information,  by  fine  and  imprisonment,  and  that  the 
King  may  lawfully  command  the  return  of  his  subject 
when  out  of  the  realm,  under  the  penalty  of  seizing 
his  lands  till  he  return,  or  may  command  any  particu- 
lar subject  to  remain  within  the  realm,  by  his  writ  of 
ne  exeat  regnum,  or  all,  or  any  part  of  his  subjects  by  pro- 
clamation, has  been  long  and  often  recognized  as  a  part 
of  the  common  law.  Fitzherbert,  N.  B.  fol.  85,  C. 
says,  "  that  the  King,  by  his  proclamation,  may  inhibit 


OP  THE  NATIONAL  COMMERCE.  555 

his  subjects  that  they  go  not  beyond  the  seas,  or  out  of 
the  realm  without  license ;  and  that  without  sending 
any  writ  or  commandment  unto  his  subjects  ;  for  per- 
haps he  cannot  find  his  subject,  or  know  where  he  is  ; 
and  therefore  the  King's  proclamation  is  sufficient  in 
itself."  And  the  judges  held  (12th  and  13th  Ed.)  that 
departing  the  realm  without  license,  was  no  contempt, 
though  done  with  intent  to  live  out  of  the  Queen's  al- 
legiance; the  departing  having  been  before  prohibi- 
tion or  restraint  by  proclamation,  or  writ  of  ne  exeat 
awarded  by  the  Queen ;  by  which  it  is  plainly  implied 
that  departing  after  proclamation  would  have  been  a 
contempt :  and  even  so  early  as  the  reign  of  Edward  I. 
several  persons  were  impleaded  for  having  acted  contra- 
ry to  a  legal  proclamation.  Lord  Hale,  in  his  treatise 
de  portibus  mar  is,  part  2.  c.  8,  sums  up  the  law  upon  this 
subject,  thus :  First,  At  common  law,  any  man  might 
pass  the  seas  without  license,  unless  he  was  prohibited ; 
Secondly,  At  common  law,  the  King  might,  by  his  writ, 
prohibit  a  person  particularly  from  going  beyond  sea  with- 
out license,  and  this  may  be  done  at  this  day ;  Thirdly,  At 
common  law,  in  time  of  public  danger,  and  pro  hoc  vice, 
there  might  be  a  general  inhibition  by  proclamation,  re- 
straining any  from  going  beyond  sea  without  license. — 
From  another  passage  in  a  MS.  of  the  same  writer,  he 
shows  what  kind  of  public  danger  he  adverts  to,  for 
speaking  of  the  general  restraint,  as  distinguished  from 
restraining  an  individual,  he  says,  "  this  is  clearly 
that  restraint  intended  by  the  statute  of  magna  charta, 
nisi  puUici  antza  prohibit  facient  (not  as  if  it  must  be  a 
prohibition  by  act  of  parlimament,)  and  this  appears  by 
the  constant  practice,  especially  in  time  of  danger,  when 
a  free  passage  might  either  weaken  the  strength,  or  dis- 


556  OPINIONS  OF  EMINENT  LAWYERS. 

close  the  secrets  of  the  realm."  And  after  citing  many 
instances,  he  adds,  "  and  this  prohibition  the  King  may 
take  off  generally  or  particularly,  as  he  pleaseth." 

From  these  authorities,  and  the  constant  practice  of 
prohibiting  marines,  by  proclamation,  from  departing 
the  realm  for  the  purpose  of  entering  into  foreign  ser- 
vice, at  times  when  the  state  of  Europe  would  render  it 
dangerous  to  weaken,  the  strength  of  the  nation,  I  con- 
ceive that  the  British  seamen  on  board  the  Friendship, 
who  actually  executed  a  contract  for  the  26th  of  March 
last,  are  guilty  of  a  misdemeanor,  for  which,  upon 
conviction,  they  may  be  fined  and  imprisoned :  as  the 
King,  by  his  prerogative,  may  restrain  all  his  subjects 
from  departing  the  realm,  he  undoubtedly  may  such 
classes  of  them,  on  which  its  strength  depends. 

Secondly,  With  respect  to  Brough,  Taylor,  and  Rising, 
if  the  entering  into:  foreign  service,  in  breach  of  the 
proclamation,  be  a  crime  in  the  British  seamen,  I  am 
of  opinion  that  a  conspiracy  to  entice  and  carry  them 
into  foreign  service,  is  also  a  misdemeanor,  punishable 
by  fine  and  imprisonment,  if  the  evidence,  upon  ex- 
amination, is  sufficient. 

Thirdly,  With  respect  to  the  sufficiency  of  the  defence 
to  an  action  brought  against  the  officers,  I  think  they 
might  justify  the  detention  of  the  ship,  so  long  as  the 
British  seamen  were  on  board,  and  till  they  received  di- 
rections upon  the  subject.  The  commander  of  a  ship, 
actually  disobeying  the  law,  cannot,  I  apprehend,  insist 
upon  a  clearance.  By  the  12th  Ch.  II.  c.  4.  s.  12,  pow- 
er is  given  to  the  King,  to  prohibit,  by  proclamation, 
the  exportation  of  gunpowder,  &c.  but  no  specific  mode 
of  putting  the  act  in  force,  by  preventing  the  exporta- 
tion, is  pointed  out;  nor  was  any  pointed  out  till  the 


OF  THE  NATIONAL    COMMERCE.  557 

29th  George  II.  c.  16,  forfeited  the  gunpowder  and  in- 
flicted a  penalty.  During  the  period  which  elapsed  be- 
tween the  passing  of  those  two  actst  I  think  the  officers 
of  the  customs  must  have  been  justified  in  stopping  a 
ship  having  gunpowder  on  board,  after  a  proclamation, 
till  such  gunpowder  was  relanded ;  and  this  proclamation 
is  equally  warranted  by  the  common  law. 

July  31stf:  1788.  AR.  MACDONALD. 

(4.)  jLJie  opinion  of  the  Attorney-General  Yorke  re-. 
lating  to  English  subjects  being  engaged  in  the  East  In-, 
dia  Company  of  Sioederi. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 
My  Lords ; 

I  received  your  Lordships'  commands,  by  letter  from 
Mr.  Popple,  signifying  to  me  that  your  Lordships  having 
some  papers  under  your  consideration,  relating  to  an 
East  India  company  lately  erected  in  Sweden,  wherein 
several  Englishmen  are  thought  to  be  engaged,  not  only 
as  having  shares  in  the  said  company,  but  as  captains, 
supercargoes,  and  sailors,  had  desired  I  would  let  your 
Lordships  know  what  laws  are  now  in  force  to  restrain 
his  Majesty's  subjects,  either  in  or  out  of  this  realm,  from 
being  anyways  engaged  as  aforementioned,  and  what 
penalties  they  are  subject  to ;  as  also  my  opinion,  wheth- 
er his  Majesty  has  any  power  to  recall  his  subjects  (other 
than  artificers  and  manufacturers)  from  foreign  parts, 
and  if  they  are  liable  to  any  penalty  upon  their  refusing 
to  return. 

As  to  the  first  question,  what  laws  are  now  in  force 
to  restrain  his  Majesty's  subjects,  either  in  or  out  of  the 
realm,  from  being  engaged  either  as  sharers  in  the  said 
company,  or  as  captains,  supracargoes,  or  sailors  under 
them ;  I  humbly  certify  your  Lordships,  that  the  act 


558  OPINIONS    OF    EMINENT    LAWYERS. 

made  in  the  fifth  year  of  the  reign  of  his  late  Majesty 
King  George  I.  entitled.  "  an  act  for  the  better  securing 
the  lawful  trade  of  his  Majesty's  subjects  to  and  from 
the  East  Indies,  and  for  the  more  effectual  preventing 
all  his  Majesty's  subjects  trading  thither  under  foreign 
commissions,"  expired  at  the  end  of  the  session  of  parlia- 
ment. 

But  the  act  of  the  ninth  year  of  his  said  late  Majesty's 
reign,  entitled,  "an  act  to  prevent  his  Majesty's  subjects 
from  subscribing,  or  being  concerned  in  encouraging  or 
promoting  any  subscription  for  an  East  India  company 
in  the  Austrian  Netherlands,  and  for  the  better  securing 
the  lawful  trade  of  his  Majesty's  subjects  to  and  from 
the  East  Indies,  is  still  in  force;  whereby  it  was  (inter 
alia)  enacted,  that  if  any  subject  of  his  Majesty,  his 
heirs,  or  successors,  should  subscribe,  contribute  to  en- 
courage, or  promote  the  raising,  establishing,  or  carry- 
ing on  any  foreign  company  or  companies,  afterwards 
to  be  raised,  formed,  or  erected  for  trading  or  dealing  to 
the  East  Indies,  or  other  parts  within  the  limits  of  trade 
granted  to  the  English  East  India  company,  or  should 
become  interested  in,  or  entitled  unto,,  any  share  in 
the  stock  or  capital  of  such  company  or  companies ; 
every  person  so  offending^  shall  forfeit  all  his  and  her 
interest,  share,  and  concern  in  the  capital  stock  or  actions 
of  such  company,  together  with  treble  the  value  there- 
of, to  be  recovered  and  distributed  as  that  act  directs. 

Penalties  are  also  inflicted  by  the  said  act,  upon  any 
of  his  Majesty's  subjects,  who  should  know  of  any 
share  or  interest,  which  any  other  subject  had  in  any 
such  company,  without  discovering  the  same,  or  who 
should  accept  of  any  trust  in  any  share  or  interest,  in 
any  such  foreign  company. 


OF  THE  NATIONAL  COMMERCE.  559 

It  is  also  enacted,  that  if  any  subject  of  his  Majesty, 
his  heirs,  or  successors,  (other  than  such  as  are  lawfully 
authorized  thereunto,)  should  go,  sail,  or  repair  to,  or 
be  found  in  or  at  the  East  Indies,  or  any  of  the  places 
aforesaid ;  every  person  so  offending,  should  be  guilty 
of  a  high  crime  and  misdemeanor,  and  should  be  liable 
to  such  corporal  punishment  or  imprisonment,  or  to  such 
fine,  as  the  court  where  such  prosecution  should  be  com- 
menced, should  think  fit ;  and  should  and  might  be 
seized  and  brought  to  England,  and  upon  their  arrival 
here,  be  committed  until  they  should  find  security  to 
answer  for  such  offence,  as  this  act  requires* 

By  an  act  made  in  the  seventh  year  of  the  reign  of 
his  late  Majesty  King  George  I.  cap.  21.  all  contracts 
entered  into  by  any  of  his  Majesty's  subjects  for  loans, 
by  way  of  bottomry,  or  any  ships  of  foreigners  bound 
for  the  East  Indies,  and  for  loading,  or  supplying  such 
ships  with  a  cargo  or  provisions,  and  all  copartnerships 
or  agreements  relating  to  any  such  voyage,  or  the  pro- 
fits thereof,  and  all  agreements  for  .wages  for  serving 
on  board  any  such  ships,  are  declared  void. 

Besides  the  particular  penalties  and  provisions  of  these 
acts,  every  subject  of  his  Majesty,  offending  by  traffick- 
ing or  adventuring  to  the  East  Indies,  or  visiting  or  haunt- 
ing the  parts  aforesaid,  under  color  of  being  concern- 
ed in,  or  employed  by  any  such  new  company,  will  in- 
cur the  penalties  inflicted  by  the  act  in  the  ninth  and 
tenth  years  of  King  William  III.  cap.  44.  viz.  the  for- 
feiture of  all  ships  and  vessels  employed  in  such  trade, 
with  the  guns,  tackle,  apparel,  and  furniture  thereunto 
belonging,  and  all  the  goods  and  merchandizes  laden 
thereupon,  and  all  the  proceeds  and  effects  of  the  samej 
and  also  double  the  value  thereof,  to  be  seized,  sued  for. 


560  OPINIONS  OP  EMINENT  LAWYERS. 

and  distributed,  as  by  that,  and  several  subsequent  laws, 
is  directed. 

As  to  the  second  question,  whether  his  Majesty  hath 
any  power  to  recall  his  subjects  (other  than  artificers 
and  manufacturers)  from  foreign  parts ;  and  whether 
they  are  liable  to  any  penalty  upon  their  refusing  to  re- 
turn ;  I  am  of  opinion  that  his  Majesty  may,  by  letters 
under  his  privy  seal,  require  any  of  his  subjects  going 
into  foreign  parts  without  his  royal  license,  (except  mer- 
chants), to  return  home  Within  a  limited  time,  upon 
their  allegiance ;  and  also  merchants,  in  case  they  are 
guilty  of  any  practices  contrary  to  the  duty  of  their  al- 
legiance or  the  laws  of  the  land  5  and  if  any  person,  af- 
ter such  letters  of  privy  seal  served  upon  him,  shall  not 
return  into  Great  Britain  within  the  time  thereby  pre- 
scribed, he  will  forfeit  the  rents  and  profits  of  all  his 
lands  and  tenements  during  his  life,  and  all  his  personal 
estate. 

As  to  seamen,  his  Majesty  may,  by  a  general  procla- 
mation under  his  great  seal,  command  all  seamen,  being 
his  natural  bom  subjects,  who  shall  be  in  the  service  of 
any  foreign  prince  or  state,  or  employed  on  board  the 
ships  of  foreigners,  to  return  home,  upon  the  duty  of 
their  allegiance,  and  under  the  peril  of  being  guilty  of 
a  contempt  of  his  royal  authority  ;  and  also  prohibit  all 
seamen  to  go  into  any  foreign  service,  or  to  serve  on 
board  the  ships  of  foreigners,  and  such  proclamations 
have  been  frequently  published  in  former  reigns. 

Nov.  27,  1731.  P.  YORKE. 

(5.)  Mr.  Dane's  opinion  as  to  the  seizing  any  machine- 
ry, which  were  designed  to  be  exported,  and  which  were 
used  in  the  English  manufactures. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 


OP    THE    NATIONAL    COMMERCE.  561 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  in  Mr. 
Popple's  letter  of  the  27th  instant,  wherein  your  Lord- 
ships are  pleased  to  desire  I  should  inform  you,  whether 
there  is  any  law  of  this  kingdom  by  which  any  machine 
or  tools  used  in  any  of  the  manufactures  of  this  king- 
dom, may  be  seized,  at  their  being  put  on  board  ship  for 
exportation  to  any  foreign  country;  I  beg  leave  to  in- 
form your  Lordships,  that  I  find  by  the  statute  of  the 
ninth  and  tenth  of  William  II I.  chap.  28th,  sec.  2d.  that 
boxes,  cases,  or  dial-plates  for  clocks  and  watches,  with- 
out the  movements  and  maker's  name,  are  prohibited 
from  being  exported  out  of  the  kingdom,  and  are  liable 
to  be  seized  on  board  ship.  And  by  the  seventh  and 
eighth  of  William  III.  chap.  19th,  sec.  2d,  frames,  for 
stockings,  are  also  prohibited  from  being  exported,  and 
are  also  liable  to  be  seized,  which  are  all  the  machines 
or  tools  used  in  any  of  our  manufactureSj  that  I  can  find 
upon  the  nicest  search  to  be  prohibited  from  exportation 
to  any  foreign  country. 

October  28,  1730.  FRAN.  FANE. 

II.  (1.)  The  report  of  the  whole  judges  upon  the  me- 
morial of  the  African  Company,  touching  the  assiento,  in 
1689. 

In  pursuance  of  his  Majesty's  order  in  council,  here- 
unto annexed,  we  do  humbly  certify  our  opinions  to  be, 
that  negroes  are  merchandize  /  that  it  is  against  the  stat- 
ute for  navigation,  made  for  the  general  good  and  pre- 
servation of  the  shipping  and  trade  of  this  kingdom,  to 
give  liberty  to  any  alien,  not  made  denizen,  to  trade  in 
Jamaica,  or  other  his  Majesty's  plantations,  or  for  any 

shipping  belonging  to  aliens  to  trade  there,  or  export 

72 


§62  OPINIONS  OF  EMINENT  LAWYERS. 

thence,  negroes,  provisions  for  shipping,  or  aliens  trading 
there ;  that  for  ships  that  shall  happen  by  tempest,  or  in 
case  of  peril  and  distress,  to  come  into  the  plantations- 
for  preservation,  and  to  amend  or  take  in  necessary  pro- 
visions, or  repair  there,  in  such  case  it  is  not  against  the 
act  of  navigation  or  any  other  law. 

J,  HOLT.  R.  LECHMERE. 

H.    POLLEXFEN,          THO.    RoKEBY. 

ED.  NEVILL.  GYLES  EYRE. 

J.  POWELL.  PEYTON  VENTRIS. 

H.  GREGORY.  Jo.  TURTON. 

(2.)  2he  opinion  of  the  Attorney  and  Solicitor-Gener- 
al, 2reby  and  Somers,  on  the  Spanish  trade  in  the  West 
Indies. 

Most  of  the  privileges  and  permissions,  proposed  by 
the  Spanish  commissioner,  cannot  be  granted  without 
dispensing  with  the  act  of  navigation,  12th  Car.  II.  cap. 
18.  wherein,  besides  the  matter  of  law,  there  is  a  great 
consideration  of  policy, 

1st.  The  act  requires  that  no  goods  or  commodities 
whatsoever,  shall  be  imported  to,  or  exported  from,  any 
plantations,  but  in  English  vessels.  But  this  must  have 
a  reasonable  construction,  and  must  be  understood  of 
such  goods  and  commodities  as  are  to  be  traded  with, 
and  not  of  provisions  for  present  sustenance,  or  tackle 
for  refitting  a  ship,  or  such  like  necessaries  for  accident- 
al occasions. 

2d.  To  disburden  a  ship  merely  for  careening,  may  be 
lawful,  so  it  be  bona  fide  ;  but  it  is  dangerous  to  make 
such  an  article,  lest,  under  the  umbrage  of  that,  a  secret 
trade  be  covered  and  carried  on,  contrary  to  the  act. 

3d.  Negroes  are  merchandize,  and  can  no  more  be  ex- 


OP    THE    NATIONAL    COMMERCE.  563 

ported,  by  the  act,  than  other  goods. — Bullion  is  allowed 
by  the  act  to  be  imported. 

4th.  The  act  makes  a  forfeiture  of  the  ship  as  well  as 
of  the  goods,  and  does  not  distinguish  whether  the  goods 
belonged  to  the  owners  or  merchants,  or  to  the  officers 
or  seamen,  and  it  is  difficult  to  render  any  such  distinc- 
tion practicable. 

5th.  The  laws  and  customs  of  the  place  must  be  ob- 
served ;  but  in  the  proceedings  there,  due  regard  will  be 
had  to  the  King  of  Spain's  orders,  and  his  subjects' 
contracts. 

5th.  The  private  exercise  of  religion  will  not  be 
gainsaid, 

GEO.  TREBY. 

J.    SOMERS. 

(3.)  Hie  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Trevor  and  Hawles,  on  carrying  logwood  to  Venice, 
whether  legal, 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships; 

We  have  considered  of  the  several  laws  for  regulating 
the  plantation,  and  other  trades,  in  England,  and  as  to 
the  first  part  of  the  case,  viz:  the  carrying  logwood  from 
Honduras,  in  the  West  Indies,  (the  same  being  no  part 
of  his  Majesty's  plantations)  to  Venice,  we  cannot  find 
any  law  that  restrains  or  forbids  the  same,  unless  the 
ship  doth  belong  unto  some  of  his  Majesty's  plantations; 
and  as  to  the  landing  European  goods  at  Venice,  and 
carrying  the  same  to  Guinea,  in  case  the  coast  of  Guinea 
be  reckoned  an  English  colony  or  plantation  (which  we 
think  it  is  not),  the  same  is  prohibited  by  the  act  made 


564  OPINIONS  OF  EMINENT  LAWYERS. 

the  15th  Car.  II.,  for  the  encouragement  of  trade,  under 
the  forfeiture  of  ship  and  goods,  which  may  be  seized 
any  where,  where  his  Majesty  hath  authority. 

But  in  case  this  ship  doth  belong  to  any  of  his  Majes- 
ty's plantations,  she  is  forfeited  for  unlading  logwood  at 
Venice,  by  the  act  22d  and  23d  Car.  II.  to  prevent  plant- 
ing tobacco  in  England,  and  for  encouragement  of  the 
plantation  trade  ;  whereby  such  ships  are  prohibited 
from  unlading  any  dying,  wood  in  any  port  or  place  in 
Europe,  other  than  England,  Wales,  or  town  of  Berwick. 

August  31,  1699.  •  THO.  TREVOR. 

Jo.  HAWLES.. 

(4.)  The  report  of  the  Attorn  ey-G-eneral  Northey  on 
preserving  the  rights  of  ^British- built  ships. 

.  Whitehall,  March  6,  1717-18. 
Sir: 

Mr.  Godolphin,  attending  the  Lords  Commissioners 
for  Trade  and  Plantations  the  other  day,  upon  the  sub- 
ject matter  of  a  bill,  by  him  proposed,  for  preserving  the 
right  of  British-built  ships,  amongst  other  things  he  in- 
formed their  Lordships,  that,  many  doubts  had  arisen  up- 
on a  certain  clause  in  an  act,  "for  preventing  frauds,. and 
regulating  abuses  in  his  Majesty's  customs,"  passed  in 
the  13th  and  14th  years  of  King  Charles  II.  the  words 
of  which  clause  are  as  follows:  "That  no  foreign-built  ship, 
that  is  to  say,  not  built  in  any  of  his  Majesty's  dominions 
of  Asia,  Africa,  or  America,  or  other  than  such  as  shall 
(bona  fide)  be  bought  before  the  1st  of  October,  1662, 
next  ensuing,  and  expressly  named  in  the  said  list,  shall 
enjoy  the  privilege  of  a  ship  belonging  to  England  or 
Ireland,  although  owned  or  manned  by  English,  (except 
such  ships  only  as  shall  be  taken  at  sea  by  letters  of 


OF    THE    NATIONAL    COMMERCE.  565 

marque  or  reprisal,  and  condemnation  made  in  the  court 
of  admiralty  as  lawful  prize,)  but  all  such  ships  shall  be 
deemed  as  aliens'  ships,  and  be  liable  to  all  duties  that 
aliens'  ships  are  liable  unto,  by  virtue  of  the  said  act  for 
increase  of  shipping  and  navigation." 

Now  their  Lordships  would  desire  to  have  your  opin- 
ion how  far  this  clause  extends,  and  what  alteration  it 
has  made  in  the  case  of  foreign-built  ships,  that  is  to  say, 
whether,  by  these  words,  "  That  all  ships  shall  be  deemed 
as  aliens'  ships,  and  be  liable  to  all  duties  that  aliens' 
ships  shall  be  liable  unto,  by  virtue  of  the  said  act 
for.  increase  of  shipping  and  navigation,"  be  meant 
that  such  ships,  being  deemed  as  aliens'  ships,  shall  be 
liable  to  the  forfeitures,  in  some  cases,  as  well  as  liable 
to  all  duties  in  other  cases,  that  aliens's  ships  are  liable 
to,  by  virtue  of  the  aforesaid  act  of  navigation  ?  Or 
whether  the  forfeitures,  appointed  by  the  act  of  naviga- 
tion, on  ships  unqualified,  by  the  said  act,  to  make  some 
voyages,  and  to  trade  in  certain  species  of  goods  therein 
enumerated,  are  so  far  altered  by  the  foregoing  clause, 
in  respect  of  foreign-built  ships,  of  English  property >  and 
manned  by  English,  though  purchased  since  the  year 
1662,  that  such  ships  may  make  the  said  voyages,  and 
trade  in  the  said  enumerated  goods,  paying  aliens'  du- 
ties ?  As  also  whether  you  have  ever  known  this  point 
controverted  in  the  court  of  exchequer,  and  what  judg- 
ment has  been  given  thereupon?  WM.  POPPLE. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  quceries. 


566  OPINIONS  OF  EMINENT  LAWYERS. 

stated  by  your  Lordships  in  the  annexed  paper,  upon 
the  act  for  preventing  frauds,  and  regulating  abuses  in 
his  Majesty's  customs,  arising  upon  some  discourse  your 
Lordships  had  with  Mr.  Godolphin,  and  am  humbly  of 
opinion  that  foreign-built  ships,  of  English  property,  and 
manned  by  English,  though  purchased  since  the  year 
1662,  may  make  the  voyages  that  any  foreign  ship, 
made  free  before  that  time,  might  have  made,  and  may 
lawfully  trade  in  the  enumerated  goods,  paying  alien  du- 
ties ;  and  that  this  has  been  always  the  opinion  of  the 
court  of  exchequer,  and  the  practice  has  been  accord- 
ingly, and  there  is  now  no  pretence  to  fancy  that,  al- 
though such  ships  are  now  deemed  as  alien  ships,  they 
are  liable  to  forfeitures  as  if  they  were  in  the  hands  of 
aliens,  for  that  the  only  alteration  made  by  the  clause 
stated,  is,  that  such  foreign-built  ships,  owned  by  Brit- 
ons, are  to  pay  duty  as  alien  ships,  but  they  are  quali- 
fied, as  ships  belonging  to  the  people  of  Britain,  to  trade 
as  such  ships  might  have  traded,  by  the  act  of  naviga- 
tion. 

March  12,  17 IT.  EDW.  NORTHEY. 

(5.)  Ilie  opinion  of  the  Solicitor  General  27i9mson>on 
/Spanish  skips  trading  to  the  British  I&'ands.. 
Sir; 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners for  Trade  and  Plantations,  signified  by  yours  of 
the  2d  instant>  I  think  it  plain,  that  by  the  first  clause 
in  the  act  of  navigation,  viz:  the  12th  of  Can  II.,  that 
Spanish  ships,  coming  from  Spanish  ports  in  America, 
laden  with  the  product  of  those  countries,  are  prohibited 
to  be  imported  into  our  colonies  or  plantations,  under 
the  penalty  of  the  loss  of  the  goods  and  ship  ;  and  also 


OP    THE    NATIONAL    COMMERCE.  567 

they  are  prohibited  to  export  goods  from  thence  in  ship- 
ping, not  English,  &c. 

February  4,  1719-20.  WM.  THOMSON. 

(6.)  MI\  West's  opinion  on  tlw  same  sulject. 

To  the  Right  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
considered  the  following  quaere,  whether  Spanish  ships, 
coming  from  Spanish  ports  in  America,  and  laden  with 
the  products  of  those  countries,  are  prohibited  by  any 
acts  of  trade,  and  particularly  those  of  the  12th  and  15th 
of  King  Charles  II.  and  that  of  the  7th  and  8th  of  King 
William,  to  unload  and  sell  their  cargoes,  in  any  of  the 
British  plantations  in  America,  and  to  load  again  there  ? 
And  I  am  of  opinion  that  Spanish  ships,  coming  from 
Spanish  ports  in  America,  &c.  are  within  the  intent  of 
the  above  mentioned  statutes,  and  are  thereby  prohib- 
ited from  unlading  and  selling  their  cargoes  in  any  of 
the  British  plantations  again  there. 

January  29,  1719-20.  RICH.  WEST. 

(7.)  Ihe  opinion  of  the  Attorney-General,  Northey,  on 
the  importation  of  naval  stores  from  Holland. 

To  the  Queen's  most  excellent  Majesty. 
May  it  please  your  Majesty. 

In  humble  obedience  to  your  Majesty's  command,  sig- 
nified to  me  by  Mr.  Secretary  Hedges,  I  have  considered 
of  the  annexed  memorial  of  his  Royal  Highness,  where- 
by it  is  proposed  unto  your  Majesty,  for  the  reasons 
therein  mentioned,  that  leave  may  be  given  for  importing 


568  OPINIONS  OP  EMINENT  LAWYERS. 

tar  and  pitch  from  Holland,  Hamburgh,  or  such  other 
foreign  parts,  from  whence  the  same  may  be  had  on  the 
best  terms,  for  furnishing  her  Majesty's  navy  therewith, 
for  the  ensuing  as  well  as  the  present  year ;  and  I  do 
humbly  certify  your  Majesty,  that  for  explaining  the  act 
for  increasing  and  encouraging  of  shipping  and  naviga- 
tion, by  a  clause  in  the  statute,  made  in  the  14th  year 
of  the  reign  of  the  late  King  Charles  the  Second,  for  pre- 
venting frauds  and  regulating  abuses  in  the  customs,  it 
is  enacted  and  declared,  "That  no  pitch  or  tar  shall  be 
imported  into  England,  Wales,  or  Berwick,  from  the 
Netherlands  or  Germany,  upon  any  pretence  whatsoev- 
er, upon  penalty  of  the  loss  of  all  the  said  goods,  as  also 
of  the  ships  and  furniture,  one  moiety  whereof  is  to  be 
to  your  Majesty  and  the  other  moiety  to  the  informer, 
who  shall  seize  or  sue  for  the  same ;  by  reason  of  which 
clause,  I  am  humbly  of  opinion  that  such  leave  cannot 
be  given  to  the  merchants  who  are  to  sell  to  the  com- 
missioners of  your  Majesty's  navy,  to  import  those  goods 
from  Holland  or  Hamburghj  for  that  it  will  be  licensing 
an  importation  expressly  prohibited  by  that  act ;  but 
notwithstanding  that  act,  I  do  not  see  but  that  your 
Majesty  may,  for  the  service  of  your  navy,  in  your  own 
ships,  import  what  pitch  and  tar  your  Majesty  shall 
Want  for  that  service,  from  Holland  or  any  other  place } 
that  act  being  intended  to  regulate  trade,  and  not  to  re- 
strain the  Crown  from  importing  from  any  place  for  the 
service  of  the  navy,  which  appears  from  the  forfeiture 
given  by  that  act  of  the  goods  imported,  and  the  ships 
in  which  they  should  be  imported,  one-half  to  the  Crown 
the  other  half  to  the  informer,  which  is  not  practicable 
in  case  of  an  importation  made  by  your  Majesty ;  how- 
ever, there  being  a  bill  ordered  to  be  brought  in  the 


OF    THE    NATIONAL    COMMERCE.  569 

house  of  commons,  for  a  temporary  suspension  of  that 
part  of  the  act  of  navigation  that  requires  the  merchant 
ships  to  be  manned  with  three-fourths  of  the  mariners 
English,  I  humbly  submit  it  to  your  Majesty,  if  it  will 
not  be  for  your  Majesty's  service  to  have  a  clause  in 
that  bill,  to  enable  a  temporary  importation  of  naval 
stores,  as  is  proposed  by  his  Royal  Highness's  memorial. 
January  13,  1703,  EDW.  NORTHEY. 

(8.)  The  opinion  of  the  Attorney,  and  Solicitor- Gener- 
al, Yorlce  and  Wearg,  on  the  same  topics. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified  to 
us  by  a  letter  from.  Mr.  Popple,  of  the  3rd  instant,  trans- 
mitting to  us  the  annexed  copy  of  a  petition  of  the  Mus- 
covy company  to  his  Majesty,  and  directing  us  to  report 
to  your  Lordships  our  opinion,  whether,  as  the  law  now 
stands,  hemp,  of  the  growth  of  Russia,  ma}^  be  imported 
in  English  bottoms  from  the  Netherlands'?  We  have 
considered  the  said  petition,  and  do  apprehend,  that  by 
the  act  of  navigation  no  restraint  is  laid  upon  the  im- 
portation of  hemp,  of  the  growth  of  Russia,  from  other 
places  beside  those  of  its  growth,  or  such  ports  where  it 
can  only,  or  most  usually  is  shipped  for  transportation ; 
an'd  it  appears  to  be  none  of  the  commodities  particular- 
ly enumerated  in  the  act  of  frauds,  14th  Car.  II.  which 
are  prohibited  to  be  imported  from  Germany  or  the 
Netherlands,  and,  therefore,  we  are  of  opinion,  that,  as 
the  law  now  stands,  such  hemp  may  be  imported  in  En- 
glish shipping,  duly  navigated  from  the  Netherlands ;  but 

this  being  a  quaere  which  concerns  a  matter  of  so  great 
73 


570  OPINIONS    OP  EMINENT    LAWYERS. 

consequence  as  the  navigation  of  this  kingdom,  we 
thought  it  proper  to  transmit  a  copy  of  the  said  petition 
to  the  commissioners  of  his  Majesty's  customs,  in  order 
to  be  informed  by  them  what  has  been  the  usage  and 
practice  in  this  instance:  whereupon  the  commissioners 
of  the  customs  having  referred  it  to  their  patent  officers 
to  certify  such  practice,  were  pleased  to  lay  before  us 
the  certificate  of  those  officers,  hereunto  annexed,  where- 
by it  appears  that  hemp  in  general  has  been  usually  im- 
ported from  Holland,  and  paid  customs  according  to  the 
book  of  rates,  without  inquiring  into  the  place  of  its 
growth. 

March  13,  1723,  P.  YORKE. 

C.  WEARG. 

(9.)  The  opinion  of  the  Solicitor-General,  Mountague, 
on  Irish  ships  carrying  barley  from  Roclidle  to  Lisbon^ 
in  1708. 
Sir: 

I  was  very  sorry  to  find,  by  yours  of  the  12th  of  this 
instant,  November,  that  the  Lords  Commissioners  of 
Trade  had  not  received  the  opinion  I  had  written  to  the 
qucere  sent  me  upon  the  extract  of  Lord  Galloway's  let- 
ter, which,  you  will  perceive,  has  been  wrote  ever  since 
the  26th  of  October,  but  was  mislaid  among  my  papers, 
and  forgot  to  be  sent ;  but  I  hope  it  will  come  time 
enough  to  answer  the  purposes  they  want  it  for :  there- 
fore, with  my  humble  service,  I  desire  you  will  lay  it 
before  their  Lordships.  JAS.  MOUNTAGUE. 

Extract  of  a  letter  from  the  Earl  of  Galloway,  her 
Majesty's  ambassador  extraordinary,  in  Portugal,  to  the 
Earl  of  Sunderland,  dated  at  Lisbon,  the  6th  of  August, 
1708,  N.  S. 


OF    THE    NATIONAL    COMMERCE.  571 

I  must  acquaint  your  Lordships,  that  there  is  lately 
come  into  this  port,  the  Happy,  Richard  Knowles,  mas- 
ter, from  La  Rochelle,  laden  with  barley,  consigned  to  a 
factor  here,  Monsieur  1'Evesque :  the  master  first  said  he 
came  from  Dublin,  but  the  entry  has  been  made  from 
the  former  place,  and  he  has  the  Queen's  pass  for  Bilboa, 
and  at  La  Rochelle  they  have  published  leave  to  em- 
bark corn  for  Portugal,  which  trade,  I  am  apt  to  believe, 
they  design  to  carry  on  by  means  of  English  vessels, 
with  such  passes  for  better  security :  as  I  suppose  such 
passes  are  not  to  be  obtained  without  the  owners  giving 
security  in  England,  it  will  be  very  proper  to  make 
them  answer  for  this  trade,  so  much  to  our  prejudice. 

To  the  Lords  Commissioners  of  Trade  and  Planta- 
tions. 

May  it  please  your  Lordships  ; 

I  have  considered  the  extract  of  the  Earl  of  Galloway's 
letter  to  the  Earl  of  Sunderland,  set  forth  on  the  other 
side,  and  am  of  the  opinion  that  Richard  Knowles,the  mas- 
ter of  the  ship  Happy,  which  voluntarily  went  to  Roch- 
elle for  corn  to  carry  to  Lisbon,  is,  in  strictness,  guilty 
of  high  treason  by  the  statute  of  the  3d  and  4th  of  her 
present  Majesty's  reign,  and  so  are  all  the  persons  con- 
cerned in  that  trade,  if  they  are  subjects  to  the  Queen  of 
Great  Britain,  and  go  voluntarily  into  France,  without 
license  from  her  Majesty ;  therefore,  if  this  mischievous 
trade  complained  of  cannot  otherwise  be  prevented,  the 
master  and  mariners,  who  are  her  Majesty's  subjects, 
may  be  seized  as  traitors,  and  tried  for  the  same,  as  per- 
sons guilty  of  foreign  treasons  are  tried. 

October  26,  1708.  JAS.  MOUNTAGUE. 


572  OPINIONS     OF    EMINENT    LAWYERS. 

(10.)  Mr.  Fane's  opinion  on  the  carriage  of  Co/nary 
wines  directly  to  the  British  Plantations. 

j[he  Case. — By  the  act  of  parliament,  passed  in  the 
15th  year  of  King  Charles  II.  entitled,  "  an  act  for  the 
encouragement  of  trade,"  no  commodity,  of  the  growth, 
production^  or  manufacture  of  Europe,  can  be  imported 
into  any  plantation  belonging  to  his  Majesty,  in  Asia, 
Africa^  or  America,  but  what  shall  be  shipped  in  Great 
Britain,  and  in  English-built  shipping,  and  whereof  the 
master  and  three-fourths  of  the  mariners  are  English,. 
and  which  shall  be  carried  directly  thence  to  the  said 
plantations,  and  from  no  other  place  whatsoever,  under 
forfeiture  of  ship  and  goods  ;  that  by  the  7th  section  of 
the  said  act,  there  is. a  proviso  that  it  shall  be  lawful  to 
ship,  in  ships  navigated  as  aforesaid,  salt  for  the  fishe- 
ries of  New  England  and  Newfoundland,  in  any  part  of 
Europe  ;  and  in  the  Madeiras,  wines  of  the  growth  there- 
of; and  in  the  Western  Islands  or  Azores,  wines  of  the 
growth  of  the  said  islands  ;  and  the  same  to  transport 
into  any  of  the  said  plantations. 

Since  the  passing  of  this  act,  it  has  been  a  custom  to 
export  Canary  wines  directly  from  the  Canaries  to  New 
England,  and  New  York ;  but  some  doubts  having  arose, 
whether  this  exportation  is  consistent  with  the  afore- 
said act  of  parliament,  and  application  having  lately 
been  made  for  liberty  to  export  Canary  wines  directly 
from  the  said  islands  to  the  other  plantations  in  Ameri- 
ca, qucere,  whether,  consistent  with  the  aforesaid  law, 
Canary  wines  may  legally  be  imported  into  any  of  the 
plantations  directly  from  the  Canary  Islands  1 

I  apprehend  that  the  Canary  Islands  are  not  esteemed, 
by  books  of  geography,  to  be  a  part  of  Europe,  and,  con- 


OF    THE    NATIONAL    COMMERCE.  573 

sequently,  the  importation  of  the  wines  directly  to  New 
York  and  New  England,  will  not  be  considered  as  a 
breach  of  the  above  mentioned  act  of  parliament;  be- 
sides, the  long  usage,  in  my  humble  opinion,  will  in 
some  measure,  if  there  should  be  any  doubt  as  to  the  sit- 
uation of  these  islands,  be  a  circumstance  which  will 
have  great  weight  in  the  determination  of  this  matter. 
February  3,  1736-7.  FRAN.  FANE. 

(11.)  The  opinion  of  the  Solicitor-General,  Eyre,  on 
granting  passes  to  ships,  contrary  to  the  act  of  naviga- 
tion. 

Whitehall,  Oct.  26,  1708. 
Sir: 

Her  Majesty  having  referred  to  the  Lords  Commis- 
sioners of  Trade  and  Plantations  a  petition  from  Mr. 
Thomas  Finder,  praying  her  Majesty's  passes  for  four 
Spanish  ships  to  come  from,  the  Spanish  West  Indies  to 
Barbadoes,  to  fetch  negroes  from  thence,  and  their  Lord- 
ships apprehending  that  such  passports  and  trade  are 
inconsistent  with  the  acts  of  navigation,  whereby  no 
goods  or  commodities  whatever  may  be  imported  into, 
or  exported  out  of,  any  of  her  Majesty's  plantations  in 
Asia,  Africa,  or  America,  in  any  ships  or  vessels  but 
such  as  do  truly  belong  to  the  subjects  of  this  kingdom, 
or  of  Ireland,  &c.  their  Lordships  have,  therefore,  com- 
manded me  to  desire  your  opinion,  whether  the  grant- 
ing such  passes  may  be  lawfully  granted  ? 

WM.  POPPLE,  jun. 
To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 

and  Plantations. 

May  it  please  your  Lordships ; 


574  OPINIONS    OP  EMINENT  LAWYERS. 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  the  letter  hereunto  annexed,  I  have  considered 
the  matter  which  your  Lordships  have  been  pleased  to 
require  my  opinion  in ;  and  I  humbly  conceive,  and  sub- 
mit it  to  your  Lordships'  great  wisdom,  that  the  grant- 
ing of  the  passes  desired  will  be  illegal,  and  directly  con- 
trary to  the  act  of  navigation. 

October  29,  1708.  R.  EYRE. 

(12.)  Mr.  Fane's  opinion  of  the  King's  ships  seizing 
vessels,  trading  ag  ainst  law,  in  the  British  Islands. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Hill,  I  have  considered  an  extract  of  a  let- 
ter from  Robert  Byng,  Esq.  Governor  of  Barbadoes,  to 
your  Lordships,  dated  the  13th  of  May,  1740,  and  am 
humbly  of  opinion  that  no  ships  or  vessels,  offending 
against  the  several  acts  of  trade,  can  be  seized  by  his 
Majesty's  ships  of  war,  within  the  limits  of  any  port 
within  the  territories  of  the  respective  Governors  of  his 
Majesty's  plantations ;  and  I  think  if  any  such  power 
should  be  attempted  by  the  commanders  of  his  Majes- 
ty's ships,  the  officers  of  the  customs  will  be  very  well 
justified  in  going  on  board  such  ship  or  vessel  so  seized, 
and  bringing  on  shore  any  prohibited  goods,  or  goods 
for  which  the  duties  have  not  been  paid  ;  and  it  is  the 
duty  of  all  persons,  both  civil  and  military,  in  his  Maj- 
esty's service,  to  be  aiding  and  assisting  to  the  officers 
of  the  customs,  if  they  are  so  required  to  be. 

August  15,  1749.  FRAN.  FANE. 


OF    THE    NATIONAL    COMMERCE.  575 

(13.)  2he  Advocate-General}  Sir  John  Coolers,  opinion, 
on  the  carrying  tobacco  from  Virginia,  in  neutral  ships, 
to  France. 
Sir: 

I  have  been  out  of  town,  or  you  had  sooner  received 
an  answer  to  the  quccre  you  proposed  to  me  from  the 
Lords  Commissioners  for  Trade,  which  I  take  to  be  this, 
viz  : — 

By  what  law,  order,  or  instruction,  English  merchants 
are  disallowed  to  send  goods  (not  contraband  and  ex- 
pressly prohibited)  in  neutral  ships  from  England,  to 
any  place  in  enmity  with  her  Majesty  ? 

I  conceive  that  the  laws  of  war  and  of  nations  do  pro* 
hibit  such  trade ;  and  such  prohibition  seems  be  be  con- 
tained or  implied  in  her  Majesty's  declaration  of  war, 
dated  the  4th  of  May,  1702,  in  these  words :  "  We  hence- 
forth strictly  forbid  all  our  subjects  to  hold  any  corres- 
pondence or  communication  with  France  or  Spain,  or 
their  subjects;"  nevertheless  the  Queen  may,  by  con- 
trary declarations  and  instructions,  allow  such  trade,  so 
as  the  same  shall  not  be  interrupted  by  any  English  ships 
of  war,  or  privateers,  as  her  Majesty  was  pleased  to  do 
in  respect  to  Spain  by  her  instructions  bearing  date  the 
29th  of  January,  1704-5,  which,  I  think,  was  in  time 
precedent  to  the  passing  of  the  bill  to  the  same  effect : 
however,  I  conceive  that  unless  the  States-General  can 
be  brought  to  consent  to  such  trade,  the  goods  so  sent 
will  be"  liable  to  their  seizure  and  confiscation,  according 
to  the  laws  of  nations,  as  the  effects  of  their  subjects 
were  here,  notwithstanding  the  permission  they  had  from 
the  States-General,  till  her  Majesty  was  pleased  to  allow 

thereof.  J.  COOKE. 

Doctors'  Commons,  Apfil  9,  1706. 


576  OPINIONS  OF  EMINENT  LAWYERS. 

(14.)  Ihe  opinion  of  the  Attorney-General,  Yorlce,  on 
the  commencement  of  duti<s  upon  importation. 

Case. — An  act  passed  the  12th  of  May,  1726,  that  li- 
quors imported  after  the  10th  of  June  should  pay  three 
shillings  duty .•=— A  ship  arrived  on  the  coast  the  8th  of 
June,  and  anchored  in  port  the  10th  of  June.  Is  the 
rum  liable  to  duty  ? 

The  general  rule  is  that  duties  laid  upon  goods  im- 
ported become  due  instantly  upon  the  importation  there- 
of; and  such  importation  is  always  accounted  from  the 
time  of  the  ship's  coming  within  the  limits  of  the  port, 
with  intent  to  lay  the  goods  on  land  :  therefore,  I  am 
of  opinion  that  if  the  place  in  Rappahannock  river,  at 
which  the  ship  in  question  was  moored  or  at  anchor  the 
10th  of  June,  was  within  the  limits  of  the  port,  then  the 
rum  is  not  liable  to  the  duty ;  for  the  duty  not  commenc- 
ing till  from  and  after  the  10th  of  June,  there  was  no 
such  duty  in  being  at  the  time  of  this  importation. 

Nov.  2,  1726.  P.  YORKE. 

(15.)  Ihe  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Kemp  and  Smith,  at  New  York,  on  the  distribution 
of  forfeitures,  under  the  acts  of  trade. 

Romney,  at  Halifax,  Dec.  8,  1763. 

Sir: 

As  his  Majesty  has  been  graciously  pleased  to  bestow 
on  me  a  quarter  of  the  moiety  granted  him  by  act  of  par- 
liament, of  all  seizures  made  by  sea  officers,  and  condemn- 
ed in  your  court  of  admiralty,  I  hereby  apply  to  you  for 
the  same  ;  and  if  I  may  be  indulged  in  a  further  request, 
I  pray  the  favor  of  you  to  cause  the  proper  officer  of 
your  court  to  give  me  some  account  of  your  proceedings 


OP  THE  NATIONAL    COMMERCE.  577 

with  regard  to  such  seizures,  for  we  have  strange  accounts 
here  of  claims  from  governors,  causes  prejudged,  and  de- 
termined before  trial,  and  of  an  attorney-general  giving 
an  opinion  confessedly  against  the  spirit  and  meaning  of 
an  act  of  parliament  and  the  evidence  of  his  own  under- 
standing; in  short,  of  reason  being  lost  in  law  or  love  of 
money ;  but  I  persuade  myself  that  these  are  only  mis- 
taken reports,  and  that  so  far  as  the  issue  depends  upon 
you,  as  judge,  you  will  duly  consider  the  act  of  a  Brit- 
ish parliament,  the  King's  proclamation  founded  there 
upon,  and  your  own  appointment  from  the  lords  of  ad- 
miralty, who  are  required  by  the  King  to  cause  his  pleas- 
ure, signified  in  the  proclamation,  to  be  duly  complied 
with. 

COLVILLE. 

The  acts  of  trade,  respecting  the  plantations,  gener- 
ally enact,  "  That  the  penalties  and  forfeitures  sued  for 
on  those  acts  in  the  plantations,  shall  be  divided  be- 
tween the  King,  the  Governor,  and  the  persons  suing  for 
the  same,  each  a  third." 

A  statute  was  passed  in  the  third  year  of  his  Majesty's 
reign,  entitled  "An  act  for  the  further  improvement  of 
his  Majesty's  revenue  of  customs,  and  for  the  encour- 
agement of  officers  making  seizures,  and  for  the  preven- 
tion of  the  clandestine  running  of  goods  into  any  part  of 
his  Majesty's  dominions;" 

Under  this  act,  and  his  Majesty's  order  in  council  of 
the  1st  day  of  June,  1763,  the  officers  and  crews  of  his 
Majesty's  ships  of  war  making  seizures  in  America,  claim 
the  moiety  of  the  net  produce  of  those  seizures,  to  be 
divided  among  them  in  the  proportions  mentioned  in 

the  said  order  of  council: 

74 


578  OPINIONS    OP    EMINENT    LAWYERS. 

Captain  Hawker  has  made  a  seizure  of  a  vessel  and 
cargo,  at  New  York,  as  forfeited  on  some  of  the  acts  of 
trade,  which  declare  the  forfeitures  shall  be  divided  in 
thirds,  as  aforesaid. 

Can  Captain  Hawker,  under  the  late  act,  and  the 
King's  order  in  council,  demand  the  moiety  for  himself, 
officers,  and  crew  ?  We  have  perused  the  late  statute 
and  the  royal  order,  and  do  not  observe  any  thing  in 
that  statute,  vesting  in  the  officers  and  crew  the  moiety 
of  seizures  made  by  ships  of  war  in  America,  excepting 
the  forfeitures  by  the  last  clause  of  that  act;  nor  any 
virtual  repeal  of  those  laws,  whereby  the  forfeitures 
were  distributable  between  the  Crown,  the  Governor,  and 
the  prosecutor. 

The  moiety  which  his  Majesty  is  empowered  to  pro- 
portionate among  the  officers  and  crew,  is  the  moiety 
mentioned  in  the  precedent  clauses  in  that  statute,  and 
is  the  share  the  officers  of  the  customs  in  Great  Britain 
are  entitled  to  by  that  statute,  on  seizures  made  by  them, 
on  breaches  of  the  acts  of  trade  there. 

The  other  part  of  all  and  every  the  seizures,  &c.  as 
the  statute  expresses  it,  which  his  Majesty  is  also  em- 
powered to  proportionate  as  aforesaid,  we  think  can  be 
construed  to  extend  no  farther  than  to  effect  a  division 
of  whatever  other  share  the  officers  and  crew  seizing 
may  be  entitled  to,  under  the  laws  by  which  the  seizure 
was  made,  which  differ  in  England  and  the  plantations, 
and  may,  perhaps,  empower  the  Crown  to  proportionate 
among  them  any  part  of  his  Majesty's  share :  we  con- 
ceive, that  wherever  seizures  are  made  by  his  Majesty's 
ships  of  war,  the  officers  and  crew  become  entitled,  upon 
prosecution,  to  the  shares  of  the  officers  of  the  customs, 


OP  THE  NATIONAL  COMMERCE.  579 

and  upon  the  whole,  therefore,  are  of  opinion,  that  this' 
late  act  cannot  warrant  a  claim,  in  America,  to  more 
than  one-third  part  of  these  forfeitures  in  such  cases, 
where,  by  prior  statutes,  the  Crown  and  Governor  are 
each  entitled  to  a  third  ;  and  with  respect  to  the  royal 
order  in  council,  we  presume,  with  submission,  it  will  be 
considered  only  as  declarative  of  the  distribution  of 
those  rights  the  officers  and  crews  are  entitled  to  by  the 
acts  of  trade. 

J.  T.  KEMPE. 
November  7,  1763.  WM.  SMITH,  jun. 

(16.)  The  opinion  of  the,  Attorney-General,  Levinz,  on 
the  importation  of  painted  stoneware. 

At  the  court  at  Whitehall,  the  3d  of  March,  1679-80: 
present,  the  King's  most  excellent  Majesty  in  council. 

The  aforewritten  memorial,  with  regard  to  the  impor- 
tation of  foreign  painted  stoneware,  being  this  day  pre- 
sented to  the  board,  with  the  papers  annexed,  it  is  or- 
dered that  the  Lords  of  the  Committee  for  Trade  do  ex- 
amine the  same,  and  report  their  opinions,  what  may  be 
fit  for  his  Majesty  to  do  therein. 

THOS.  DOLMAN. 

Reference  therein,  touching  earthenware.  Report  of 
Mr.  Attorney-General  about  earthenware. 

May  it  please  your  Lordships  ; 

By  the  statute  of  the  3d  Edward  IV.  cap.  4  the  bring- 
ing of  any  painted  wares  into  this  kingdom  is  prohibit- 
ed ;  whether  the  earthenwares  in  question  be  painted  or 
not  is  matter  of  fact,  and,  properly,  by  the  laws  of"  this 
kingdom,  triable  by  a  jury;  therefore,  whether  your 
Lordships  will  think  fit  to  have  the  matter  determined 


580  OPINIONS  OP  EMINENT  LAWYERS. 

by  a  certificate  of  the  officers  of  the  place,  whose  intent 
it  is  to  import  them,  or  refer  them  to  a  trial  by  a  jury 
of  this  kingdom,  whose  intent  it  is  to  obstruct  the  im- 
portation, I  most  humbly  submit. 

April  19, 1680.  ORES  WELL  LEVINZ. 

III.     (1.)  2Jie  opinion  of  Sir  William  Jones,  Sir  F. 

Winnington,  and  Mr.  J.  King,  in  1676,  on  the  statute 

2Ist  James,  of  monopolies,  how  far  an  action  uoould  lier 

in  the  Barhadoes  courts,  for-  seizing  goods  of  the  African 

Company. 

An  action  is  brought  against  B.  in  the  Barbadoes,  up- 
on the  statute  of  the  21st  Jac.  cap.  3.  of  monopolies,  for 
seizing  certain  goods  imported  thither  from  Guinea, 
contrary  to  the  immunities  and  privileges  granted  by 
his  Majesty  to  the  royal  African  company. 

Queer e  1. — Whether,  in  this  case,  the  action  lies  upon 
that  statute  for  treble  damages,  considering  the  proviso 
that  exempts  all  charters  granted  to  any  companies  or 
societies,  erected  for  the  maintenance  or  ordering  of  any 
trade  or  merchandize  out  of  that  statute?'  I  am  of  opin- 
ion, that  this  proviso  doth  exempt  any  charter,  granted 
to  any  society  of  merchants,  for  the  maintenance  or  or- 
dering of  trade,  from  being  within  the  penalty  of  the 
statute ;  for  that  proviso,  as  it  doth  not  confirm  such 
charters,  but  leaves  them  to  stajid  and  fall  by  the  com- 
mon law,  so  it  doth  not  inflict  any  new  penalty  upon 
them :  wherefore,  I  think,  an  action  will  not  lie  upon 
this  statute  for  treble  damages,  for  doing  any  thing  in 
execution  of  such  charter. 

Quaere  2; — If  any  action  lies  upon  the  statute,  can  it 
be  brought  in  any  other  courts  but  the  king's  bench, 
common  pleas,  or  exchequer  at  Westminster,  the  statute 


OP  THE  NATIONAL  COMMERCE.  581 

seeming  to  restrain  the  subject  to  those  courts  ?  It  can- 
not be  brought  within  any  of  the  inferior  courts  within 
England  ;  but  if  the  law  of  the  Barbadoes  doth  enact  all 
statutes  made  in  England  to  be  of  force  there,  (for  a  stat^ 
ute  made  in  England  doth  not  of  itself  extend  to  any  of 
the  foreign  plantations,  unless  the  statute  doth  particu-. 
larly  name  them,)  then  an  action  will  lie  within  their 
courts  there  upon  a  statute  made  here,  though  confined 
to  the  principal  courts  here ;  but,  upon  the  answer  given 
to  the  first  quaere,  I  think  no  action  will  lie  upon  this 
statute,  for  putting  in  execution  this  charter,  but  it  will 
stand  or  fall  by  the  common  law. 

November  13,  1676.  WM.  JONES. 

The  second  quaere  is  out  of  the  case,  by  the  resolution 
of  the  first ;  for  if  this  statute,  as  to  the  recovery  of  treble 
damages,  extends  not  to  the  royal  African  company,  (as 
I  conceive  it  doth  not,)  then  no  action  can  be  brought 
in  Barbadoes  or  any  where  else. 
•  November  16,  1676.  F.  WINNINGTON. 

I  conceive  no  action  lies  upon  this  statute  against  the 
company,  or  any  agent  of  theirs,  for  any  matter  done  in 

pursuance  of  their  charter. 

November  16,  1676.  J.  KING. 

(2.)  Ike  opinion  of  the  Attorney-General,  Sawyer,  in 
1681,  concerning  interlopers. 

Report  of  the  Attorney-General  concerning  interlo-. 
pers. 

In  obedience  to  your  Majesty's  order  in  council,  of  the 
10th  of  November,  whereby  I  am  commanded  to  consid- 
er of  the  petition  of  the  East  India  company,  and  to  re- 
port how  the  law  stands,  and  whether  such  a  proclama- 
tion may  be  granted  as  is  desired :  I  humbly  conceive, 


582  OPINIONS  OF  EMINENT  LAWYERS. 

that,  by  law,  your  Majesty's  subjects  ought  not  to  trade 
or  traffic  with  any  infidel  country,  not  in  amity  with 
your  Majesty,  without  your  license  ;  and  that  your  Maj- 
esty may  signify  your  pleasure  therein,  and  require  your 
subjects'  obedience  thereunto,  by  your  royal  proclama- 
tion. I  am  likewise  of  opinion,  that  the  license  given 
to  the  company  to  trade  into  India,  with  a  prohibition 
to  others,  is  good  in  law,  and  the  penalties  of  forfeitures 
of  goods  may  therein  run  upon  any  goods  which  shall 
be  seized  within  the  limits  of  the  company^  charter,  as 
for  breach  of  a  local  law  made  by  your  Majesty,  which, 
I  conceive,  your  Majesty  may  mal:e  in  the  foreign  plan- 
tations and  colonies  inhabited  by  your  Majesty's  subjects 
by  your  permission.  I  am  of  opinion,  that  your  Majes- 
ty may  issue  such  proclamation  as  is  desired. 

Nov.  16,  1681.  R.  SAWYER. 

( 3 . )  The  opinion  of  the  A  ttorncy  and  Solicitor-General^ 
Hurcourt  and  Mountague^.  on  the,  changes  effected^  ly  the 
union >  in  trade. 

To  the  Right  Hon.  Sidney,  Earl  of  Godolphin,  Lord 
High  Treasurer  of  Great  Britain. 

May  it  please  your  Lordship  ; 

In  obedience  to  her  Majesty's  order  in  council,  of  the 
28th  of  July  last,  upon  the  petition  of  divers  merchants 
and  others,  her  Majesty's  subjects  of  Scotland,  who  had, 
since  the  1st  day  of  May  last,  imported  or  brought  from 
that  part  of  Great  Britain  into  the  port  of  London,  as 
well  divers  prohibited  and  uncustomable  goods,  as  divers 
customable  goods,  all  which  had  been  seized  as  forfeited, 
by  which  order  we  were  commanded  to  call  the  parties 
concerned  before  us,  and  endeavor  to  settle  such  a  method 


OF  THE  NATIONAL  COMMERCE.  583 

of  proceeding  as  might  be  most  expeditious  for  bringing 
the  matter  aforesaid  to  an  easy  and  proper  determina- 
tion: we  humbly  certify  your  Lordship,  that  we  have 
several  times,  in  the  presence  of  Sir  David  Nairne,  heard 
Colonel  Graham,  Mr.  Coole,  Mr.  Larrington,  and  Mr. 
Steward,  (who  took  upon  them  to  treat  with  us  on  the 
behalf  of  all  persons  concerned  in  the  said  petition,)  as 
to  the  several  matters  contained  in  the  said  petition; 
and  we  have,  with  their  consent,  agreed  upon  and  set- 
tled the  following  method  of  proceeding^  as  the  most  ex- 
peditious and  easy  for  bringing  the  matter  in  question 
to  a  proper  and  judicial  determination. 

1st.  That  oath  be  made,  in  writing,  that  the  goods 
and  merchandize  in  question  were  imported  into  Scot- 
land before  the  union,  on  the  sole  risk  and  account  of 
her  Majesty's  subjects  of  Scotland ;  and  that  no  English- 
man, or  alien,  was  any  ways  concerned  or  interested  in 
such  goods  or  merchandizes;  and  that  such  goods  and 
merchandizes  paid  the  duties  in  Scotland,  due  and  pay- 
able there,  at  the  time  of  the  importation  thereof,  and 
were  afterwards  brought  into  the  port  of  London,  on  the 
sole  risk  and  account  of  such  subjects  of  Scotland. 

2d.  That  an  exact  account  shall  be  taken  by  such  per- 
sons as  the  commissioners  of  her  Majesty's  customs  shall 
appoint,  in  the  presence  of  the  proprietors  of  such  goods, 
or  their  factors,  or  agents,  of  the  quality  of  all  such  goods 
and  merchandize  now  under  seizure,  touching  which  any 
Scotch  proprietor  shall  desire  the  seizure  to  be  discharg- 
ed ;  and  that  a  reasonable  and  moderate  estimate  be  ta- 
ken of  the  value  of  such  goods. 

3d.  That  some  merchant,  or  other  person,  of  sufficient 
ability  to  answer  the  value  in  a  devenerunt,  inhabiting  and 
settled  within  the  city  of  London,  shall  take  up  the 


584  OPINIONS  OF  EMINENT  LAWYERS. 

said  goods,  and,  by  writing  under  his  hand,  admit  the 
quantity  of  such  goods  and  merchandizes  to  have  come 
to  his  hands  and  possession,  and  shall  likewise  admit  the 
value  thereof  according  to  the  said  estimate,  to  the  end 
the  party  taking  up  such  goods,  and  admitting  the  quan- 
tity and  value  thereof  as  aforesaid,  may  be  charged  for 
the  same  by  an  information •,  on  a  dwenerunt,  in  the  court 
of  exchequer,  if  by  virtue  of  the  articles  of  union,  such 
prohibited  and  uncustomable  goods,  imported  into  Scot- 
land before  the  union,  cannot  be  afterwards  brought  in- 
to any  port  of  Great  Britain  without  forfeiture  ;  or  if 
customable  goods,  so  imported  into  Scotland  as  afore- 
said, cannot  be  afterwards  imported  or  brought  into  any 
part  of  Great  Britain,  without  payment  of  the  English 
duties. 

4th.  In  such  writing,  the  party  signifying  the  same 
shall  likewise  agree  to  appear  to  any  information  of  a 
decenerunt,  which  shall  be  brought  in  the  name  of  the 
attorney-general,  or  any  informer  as^the  attorney  shall 
direct,  and  plead  to  any  such  information  the  first  week 
in  next  term,  or  as  soon  after  as  the  attorney-general 
shall  think  fit,  so  as  the  merit  of  the  case  may  be  then, 
upon  such  trial,  judicially  determined  ;  and  that  such 
agreements,  as  to  the  party's  admission  of  the  quantities 
and  values,  as  aforesaid,  and  as  to  the  party's  consent  to 
appear,  plead,  and  take  notice  of  trial  as  aforesaid,  be 
made  an  order  of  the  court  of  exchequer,  the  first  day 
of  next  term;  the  attorney-general  consenting  by  such 
order,  to  admit  the  importation  into  Scotland  before  the 
said  1st  day  of  May,  and  also  to  admit  the  Scotch  prop- 
erty. 

5th.  That  such  oath  be  made,  and  an  account  taken 
of  the  quantity  of  such  goods,  and  an  estimate  made  of 


OF    THE    NATIONAL   COMMERCE.  585 

the  value  thereof,  and  such  goods  being  taken  up  by 
some  such  responsible  person  as  aforesaid,  who  shall 
sign  such  writing,  as  is  hereinbefore  contained,  the  seiz- 
ures of  the  said  goods  may  be  instantly  discharged,  the 
officers  who  seized  the  same  consenting  thereunto,  if 
your  Lordship  shall  be  pleased  to  approve  thereof. 
August  18,  1707.  SIM.  HARCOURT. 

JAS.    MOUNTAGUE. 

(4.)  2 he  opinion  of  the  Solicitor-General,  on  the  Amer- 
ican act,  establishing  the  case  of  prize^  du'ing  the  war  of 
Queen  Anne. 

By  an  act,  the  6th  Anna  Regina,  entitled,  "an  act  for 
the  encouragement  of  the  trade  to  America,"  by  the  sec- 
ond clause,  it  is  enacted  that  the  flag  officers,  command- 
ers, and  other  officers  and  seamen  of  every  such  ship  or 
vessel  of  war,  shall  have  the  sole  interest  and  property 
of,  and  in,  all  and  every  ship,  vessel,  goodSj  and  mer- 
chandize, they  shall  take  in  any  part  of  America,  (being 
first  adjudged  lawful  prize  in  any  of  her  Majesty's  courts 
af  admiralty,  and  subject  to  the  customs  and  duties  pay- 
able to  her  Majesty,  as  if  the  same  had  been  first  im- 
ported to  any  part  of  Great  Britain,  and  from  thence  ex- 
ported for,  and  in  respect  of;  all  such  goods  and  merchan- 
dize,) to  be  divided  in  such  proportions,  and  after  such 
manner,  as  her  Majesty,  her  heirs,  and  .successors,  shall 
think  fit  to  order  and  direct. 

The  next  clause  lays  the  same  duties  upon  prizes  tak- 
en by  privateers. 

The  Case. — One  of  her  Majesty's  ships  of  war,  or  a 
privateer^  takes  a  prize  in  America,  and  condemns  her  in 
oneof  her  Majesty's  courts  of  admiralty,  and  the  said  prize 

is  carried  into  one  of  her -Majesty's  ports  of  America. 
7-5 


586  OPINIONS    OF  EMINENT    LAWYERS. 

Qucere  1. — What  duties  the  captors  are  to  pay  in  this 
case,  whether  duty  payable,  as  if  the  goods  in  question 
were  landed  in  England7  or  whether  so  much  only  as 
would  be  left  in  England,  if  the  same  were  exported 
from  hence  into  parts  beyond  the  seas? 

Note. — That  the  difference  of  the  duties  will  plainly 
appear  by  the  annexed  paper. 

Answer. — The  goods  that  are  thus  taken  in  America, 
and  carried  into  any  of  the  ports  there,  I  take  to  be 
chargeable  with  such  duties  as  would  be  left  in  England, 
if  the  same  had  been  exported  hence  after  an  importa- 
tion hither. 

Qu&re. — Another  question  doth  arise  upon  this  clause, 
whether  the  duty  that  is  to  be  taken,  is  to  be  the  prize 
duty,  or  the  duty  as  if  the  goods  were  imported  by  way 
of  merchandize  1 

Answer. — Goods  thus  taken  in  America  must  be  looked 
upon  as  prize  goods,  and  cannot  be  said  to  be  imported 
by  the  captors  by  way  of  merchandize :  therefore,  I  do 
think,  the  prize  duty  is  to  be  taken. 

May  25,  1708.  J,  MOUNTAGUE, 

(5.)  The  opinion  of  ike  Solicitor-General,  Thomson,  re- 
lating to  a  duty  laid,  in  Carolina,  upon  British  commod- 
ities. 

Sir: 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners for  Trade  and  Plantations,  signified  by  yours  of 
the  26th  of  Marchlast,  I  have  considered  Colonel  Rhett's 
letter ;  and  as  the  law  mentioned  by  him,  laying  a  duty 
of  ten  pounds  per  cent,  upon  British  goods,  seems  very 
extravagant,  and  may  be  reasonably  supposed  to  be  at- 
tended with  the  consequences  he  mentions,  I  think  it 


OF    THE    NATIONAL    COMMERCE.  587 

may  be  truly  said  not  to  be  consonant  to  reason,  and  as 
this  duty  is  so  heavy,  it  may  prove  to  be  such  a  burthen 
to  trade,  as  to  be  in  effect  a  prohibition  of  it  to  the  Brit- 
ish subjects,  which  is  by  no  means  agreeable  to  the  laws 
of  Britain :  I  therefore  humbly  apprehend  that  the  pow- 
er of  making  laws,  by  the  charter  to  the  proprietors,  is, 
in  this  instance,  exceeded.  It  would  be  too  tedious  and 
too  expensive  for  every  particular  trader  to  contest  the 
payment  of  the  duty  upon  the  supposed  in  validity  of  the 
act,  as  being  unreasonable,  and  if  determined  against  them 
there,  to  appeal  to  the  King  in  council ;  but  if  the  mer- 
chants find  themselves  aggrieved,  I  presume  they  will 
complain,  and  then,  upon  a  petition  to  the  King,  the 
proprietors  will  be  heard,  and  if  they  do  not  consent  to 
remedy  the  grievances,  a  prosecution  maybe  ordered 
against  them  and  their  charter,  nor  will  the  complaint 
be  improper  in  parliament. 

April  5,  1718.  WM.  THOMPSON. 

(6.)  1  lie  same  lawyer's  opinion  on  choosing  a  treasurer 
of  the  factory  at  Lisbon. 

Sir; 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners of  Trade  and  Plantations,  signified  by  yours  of 
the  26th  of  this  instant,  March,  I  have  considered  the 
patent  to  the  consul,  and  the  powers  to  choose  a  treasu  - 
rer ;  and  I  humbly  conceive  that,  if  any  of  the  mer- 
chants there  refuse  such  an  office,  or  any  other  put  upon 
him  by  the  consul  and  factory  there,  the  consul  may  re- 
fuse to  be  assisting  to  that  merchant,  or  to  protect  his 
effects,  or  to  let  him  -have  any  of  the  privileges  which 
he  allows  to  other  merchants  there  j  but  there  is  no 
method  prescribed  in  his  patent,  to  inflict  penalties,  or 


588  OPINIONS     OF     EMINENT    LAWYERS. 

to  levy  them,  for  such  refusal  of  offices,  though  they  are 
necessary  to  support  the  society  ;  and,  therefore^  think 
the  consul's  power  defective  in  this  particular. 

Marrh  30,  1718.  WM.  THOMSON. 

(7.)  2 he  opinion  of  the  Attorney-General,  Ryder^on  the 
case  of  distressed  English  seamen  at  Cadiz-, 

To  his  Grace  the  Duke  of  Bedford. 
May  it  please  your  Grace. 

Jn  obedience  to  your  Grace's  commands,  signified  to 
me  by  Mr.  Aldworth's  letter  of  the  6th  instant,   repre- 
senting that  the  number  of  ships  cast  away  in  the  neigh- 
borhood of  Cadiz,  haying  occasioned  so  many  sailors  to 
apply  to  Mr.  Consul  Colebrook  for  relief,  that  the  dis- 
bursements hs  has  found  it  his  duty  to  make,  to  prevent 
their  perishing,  or  being  obliged  to  enter  into  the.  ser- 
vice of  Spain,  has  so  far  exceeded  what  he  has,  been  able 
to  collect  of  the  contribution  settled,  by  the  act  of  par- 
liament, in  1736,  that  he  has  thought  himself  obliged  to 
draw  a  very  irregular  bill  on  your  Grace  for  1500  dol- 
lars, to  put  him  in  a  condition  to  go  on  with  this  neces- 
sary expense ;  also  inclosing  the  letters  from  the  consul 
upon  this  occasion,  and  desiring  my  opinion  upon  the 
methods  he  may  most  legally  and  properly  pursue,  hi  or- 
der to  obtain  the  payment  of  the  duty  settled  by  parlia- 
ment for  the  relief  of  the  distressed  seamen,  and-  to  see 
the  money  appropriated  to  that  use  for  which  it  was  in- 
tended :    I  have  considered  the    said   inclosed   letters 
(which  are  herewith  returned),  and  likewise  reviewed  a 
report  I  made  upon  a  former  reference  relating  to  the 
same  matter,  in  your  Grace's  letter  in  October,  1749,  in 
which  I  have  stated,  that  I  had  considered  the  matters 


OP    THE    NATIONAL    COMMERCE.  589 

contained  in  the  said  letter >  and  find  two  things  com- 
plained of:  one,  the  unequal  distribution  of  the  money, 
collected  pursuant  to  the  act  of  the  9th  of  his  present 
Majesty,  chap.  25 :  the  other,  the  evasion  of  it,  by  get- 
ting clearances  of  ships  without  payment  of  the  duty. 

As  this  is  a  law  to  be  carried  into  execution  in  a  for- 
eign country,  not  within  his  Majesty's  dominions,  I  do 
not  see  any  method  that  can  be  taken  here  by  proceed- 
ings in  law,  to  remedy  either  of  the  grievances. 

As  to  the  first,  it  seeming  to  be  the  effect  of  partiali- 
ty in  the  deputies,  who  have  the  power  of  distribution, 
can  be  regulated  only  by  influencing  them  to  act  in  a 
more  upright  impartial  manner,  or  engaging  the  mer- 
chants to  choose  other  deputies,  who  will  be  more  just  in 
the  execution  of  the  trust. 

As  to  the  latter,  the  clearances  from  the  port  being 
in  the  power  of  the  Spanish  officers,  it  does  not  appear 
to  me  what  method  can  be  used  to  prevent  the  captains 
of  ships  from  having  them  before  they  pay  the  dues  di- 
rected by  the  act,  but  by  interposition  of  the  court  of 
Spain,  in  directing  and  obliging  their  officers  to  deliver 
them  to  the  English  consul,  in  order  to  be  detained  by 
him  till  the  act  is  complied  with. 

As  to  what  is  proposed  of  directing  the  captains  of 
ships  to  deliver  their  Mediterranean  passes  to  the  consul, 
as  a  security  for  paying  the  dues,  I  do  not  know  how 
such  an  order  can  be  enforced,  unless  by  making  it  a 
condition  on  which  the  validity  of  those  passes  shall  de- 
pend, that  they  shall  be  so  delivered,  and  not  re-deliv- 
ered, without  conforming  to  the  act,  of  which  the  con- 
sul, or  some  deputy  for  him,  to  make  endorsements ;  but 
what  may  be  the  consequence  or  inconvenience  of  mak- 
ing the  force  of  the  passes  to  depend  on  this,  I  am  not 


590  OPINIONS    OF  EMINENT  LAWYERS. 

able  to  judge ;  and,  perhaps,  it  may  be  proper  to  take 
the  opinion  of  the  board  of  trade  upon  the  whole,  what 
may  be  fittest  to  be  done,  to  remedy  the  inconveniences 
in  a  matter  in  which  the  trade  is  so  much  concerned. 

February,  8,  1750.  D.  RYDER. 

(8.)  Mr.  Fane's  opinion  on  the  privileges  of  the  Rus- 
sia company,  carrying  on  a  trade  to  Armenia. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  inclosing  extract  from  the  charter 
of  the  Russia  company,  and  desiring  my  opinion,  wheth- 
er the  privileges  therein  granted  to  the  said  company, 
particularly  those  of  importing  through  Russia  the  pro- 
duce and  manufactures  of  Armenia  major  or  minor, 
Media,  Hyrcania,  Persia,  or  the  countries  bordering  on 
the  Caspian  Sea,  do  still  subsist,  notwithstanding  the 
acts  of  navigation  and  the  charter  of  the  East  India 
company,  confirmed  by  acts  of  parliament  subsequent  to 
the  Russia  charter :  I  have  considered  the  several  char- 
ters, and  the  act  of  navigation  ;  and  I  am  humbly  of 
opinion,  that  the  privileges  granted  to  the  Russia  com- 
pany >  of  importing  through  Russia  the  produce  and 
manufactures  of  Armenia,  major  or  minor,  Media,  Hyrca- 
nia,  Persia,  or  the  countries  bordering  on  th,e  Caspian 
sea,  ceased  by  the  act  of  navigation,  by  which  all  goods 
of  foreign  growth  and  manufacture  are  prohibited  under 
severe  penalties  and  forfeitures,  from  being  brought  in- 
to England,  Ireland,  £c.  from  any  place  or  places,  coun- 
try or  countries,  but  only  from  those  of  their  said  growth 
or  manufacture,  or  from  those  ports  where  the  said  goods 


OF    THE    NATIONAL    COMMERCE.  591 

can  only>  or  are,  or  usually  have  been  first  shipped  for 
transportation,  and  from  none  other  places  or  countries; 
this  subsequent  act  of  parliament,  I  think,  therefore,  very 
fully  determines  these  privileges  ;  but  if  there  could  be 
any  doubt  upon  it,  I  apprehend  the  subsequent  exclusive 
charter  of  the  East  India  company,  confirmed  by  act  of 
parliament)  whereby  the  sole  trade  to  those  countries  is 
granted  to  that  company,  entirely  takes  away  all  pre-> 
tences  to  those  prior  privileges. 

June  17,  1734,  FRAN.  FANE, 

(9.)  2he  opinion  oj  the  Attorney  and  Svlicitir-Grener- 
al,  Ryder  and  Strange,  on  the  act  of  Georgia,  about  t  ade 
with  the  Indians. 

To  the  Right  Hon,  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords ; 

We  have  considered  the  queries  sent  to  us  by  your* 
Lordships,  in  Mr.  Popple's  letter  of  the  21st  of  June  lasfy 
the  first  of  which  is,  "whether  the  act  of  the  trustees 
of  Georgia,  or  of  any  assembly}  passed  in  the  colonies 
abroad,  and  confirmed  by  the  Crown,  can  grant  to  any 
of  the  said  provinces  an  exclusive  trade  with  the  Indians 
dwelling  within  the  respective  provinces." 

And,  as  to  that,  we  are  of  opinion  that  as  an  absolute 
exclusive  trade  with  the  Indians  would  be  destructive 
of  that  general  right  of  trading  which  all  his  Majesty's 
subjects  are  entitled  to;  and,  therefore,  repugnant  to  the 
laws  of  Great  Britain,  no  act  of  the  trustees  of  Georgia, 
or  of  any  assembly  passed  in  the  colonies  abroad,  con- 
firmed by  the  Crown,  can  grant  to  any  of  the  said  pro- 
vinces, an  exclusive  trade  with  the  Indians  dwelling 
within  the  respective  provinces,  though  the  method  of 


592  OPINIONS  OP  EMINENT  LAWYERS. 

trading  within  each  respective  province  may  be  regulat- 
ed by  the  laws  thereof. 

And  as  to  the  second  qu&re,  which  is,  whether  the 
act  above  mentioned  excludes  all  persons  whatsoever, 
whether  inhabitants  of  Georgia  or  not,  from  trading 
with  the  Indians  settled  within  the  bounds  of  the  pro- 
vince of  Georgia^  as  described  by  the  charter,  except 
such  as  shall  take  out  licenses  according  to  the  direction 
of  the  said  act ;  we  are  of  opinion,  that  the  act  therein, 
referred  to  does  exclude  all  persons  whatsoever,  whether 
inhabitants  of  Georgia  or  not,  from  trading  with  the  In- 
dians settled  within  the  bounds  of  the  province  of  Geor- 
gia, as  described  by  the  charter,  except  such  as  shall 
take  out  licenses  according  to  the  direction  of  the  said 
act ;  that  act  and  the  reason  of  it,  extending  ti  all  per- 
sons whatsoever,  and  such  taking  out  of  licenses  being 
no  more  than  a  proper  regulation  of  the  trade  within  the 
said  province. 

July  28,  1737;  D.  RYDER. 

J.  STRANGE. 

(10.)  Mr.  West's  opinion  on  some  acts  of  South  Car- 
olina for  regulating  the  trade,  with  the  Indians. 

To  the   Ilight   Hon.  the   Lords    Commissioners    for 
Trade  and  Plantations; 
My  Lords; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  the  several  following  acts  passed 
in  South  Carolina,  in  August  and  *  September,  1721. — 
As  to  the  act,  entitled  "  an  act  for  the  better  regulation 
of  the  Indian  trade,  by  appointing  commissioners  for 
that  purpose;  and  to  survey  and  supervise  the  garrisons, 
and  to  settle  the  bounds  of  the  Indians,"  the  chief  pur- 


$F  THE  NATIONAL    COM3V!EftCE.  593 

view  of  which  act  is  to  regulate  the"  Indian  trade,  and 
for  that  purpose  does  direct  that  ho  person  whatsoever 
shall  trade  with  the  Indians  in  amity  with  that  govern- 
ment-, without  first  repairing  to  Charleston  in  Carolina 
and  taking  out  a  license  for  his  trading  from  three  com- 
missioners appointed  by  this  act ;  which  trader  is  also 
directed  to  give  bond  for  his  carrying  on  his  trade  accord- 
ing to  such  rules  and  regulations  as  shall  be  made  from 
time  to  time  by  the  said  commissioners. 

It  is  also  enacted  that  these  licenses  are  to  be  renew- 
ed annually,  and  that  the  sum  of  twenty  pounds  shall 
be  paid  for  each  license ;  and  powers  are  thereby  also 
given  to  the  said  commissioners  to  determine  all  con- 
troversies that  shall  happen  between  any  traders  and 
the  Indians,  in  such  manner  as  they  in  their  discretion 
shall  think  fitj  upon  the  evidence  of  any  single  Indian, 
without  any  jury,  or  any  form  of  law  whatsoever; 

If  this  act  related  to5  and  affected  only  the  inhabitants 
and  proper  subjects  of  the  colony  of  Carolina;  I  should 
be  of  opinion  that  it  should  be  not  proper  to  be  passed 
into  law,  since  the  hardships  thereby  imposed  upon  the" 
traders,  are,  in  my  opinion,  very  grievous,  and  the  pow- 
ers granted  to  the  commissioners  seem  to  be  very  arbi- 
trary. 

But,  besides  these  particulars}  t  must  beg  leave  to  ac- 
quaint your  Lordships}  that;  upon  the  occasion  of  this 
act,  I  have  been  attended  by  John  Carter  Esq.  (agent 
for  the  province  of  Virginia,)  who  has  represented  to 
me  that  the  inhabitants  of  that  province  have  long  car- 
ried on  a  considerable  trade  with  the  same  IndianSj  the 
trade  with  whom  is  intended  to  be  regulated  by  this  act, 
and  that  in  carrying  on  their  said  trade,  they  are  obliged 

to  carry  their  goods  and  merchandizes  through  the  utter- 

76 


594  OPINIONS    OP    EMINENT    LAWYERS. 

most  parts  of  the  province  of  Carolina,  which  are,  at 
least,  four  or  five  hundred  miles  distant  from  Charles- 
ton ;  and  that  the  people  of  that  province  do  apprehend 
that  their  trade  will  be  considerably  affected  and  preju- 
diced by  the  general  words  of  this  act. 

And,  in  relation  to  this  representation  of  Mr.  Carter, 
(in  case  that  fact  is  true,  that  the  inhabitants  of  Virgin- 
ia are  obliged  in  their  carrying  on  their  trade,  to  trans- 
port their  goods  through  any  part  of  the  province  of 
Carolina,)  I  ain  humbly  of  opinionr  that  those  Virginia 
traders  will  be  (by  virtue  of  the  general  words  of  this 
act,)  obliged  to  take  out  licenses  from  the  commissioners 
of  Charleston,  and  to  conform  themselves  to  all  such  re- 
gulations as  are  prescribed  in  it, 

I  submit  to  your  Lordships,  whether  the  difficulties 
and  hardships  hereby  imposed  upon  the  inhabitants  of 
Virginia  will  not  amount  to  a  total  prohibition  of  their 
trade  with  those  Indians  who  are  the  subject  matter  of 
this  Carolina  law  ;  since  every  Virginia  trader  will  be 
obliged  to  travel  near  five  hundred  miles  out  of  his  way, 
in  order  to  obtain  a  Carolina  license,  for  he  must  be  per- 
sonally present  in  Charleston  to  enter  into  bond,  ere  he 
can  purchase  that  favor  :  he  must  come  there  precisely 
during  the  two  days'  quarterly  sessions  of  their  com- 
missioners ;  and  if  by  sickness,  the  frequent  overflow- 
ings of  rivers,  or  any  other  accident  in  his  journey,  he 
happens  to  miss  that  opportunity,  he  must  then  wait 
three  months  before  he  has  another ;  and  all  that  while, 
himself,  his  servants,,  and  horses,  laying  idle  on  expense, 
and  his  goods  liable  to  perish ;  he  must  find  one  to  be 
security  with  him  in  a  bond  of  three  hundred  pounds 
penalty  at  a  place  where  he  is  an  entire  stranger  ;  he 
must  pay  an  annual  tax  of  twenty-three  pounds  for  ob- 


OF  THE  NATIONAL  COMMERCE.  595 

taining  his  license  and,  which  is  still  worse,  he  is  to  for- 
feit his  bond  on  the  least  transgression  of  laws  not  pro- 
mulgated at  the  time  his  bond  is  given,  but  to  be  made 
occasionally,  according  to  the  sovereign  will  and  plea- 
sure of  three  persons  called  commissioners,  vested  with 
an  unlimited  power  of  declaring  whatever  they  think 
fit  to  be  law,  and  judging  definitively  upon  what  they 
please  to  call  a  breach  of  it ;  exposed  to  be  condemned 
in  as  many  sums  of  ten  pounds,  as  complaints  shall  be 
made  against  him,  and  convicted  upon  the  evidence  of 
an  Indian,  and  that,  without  the  benefit  of  a  trial  by 
jury- 
Besides  what  I  have  now  mentioned,  I  must  beg  leave 
to  observe  to  your  Lordships,  that  attempts  of  the  like 
nature  with  this  bill  have  been  long  the  occasion  of  dis- 
putes between  the  two  provinces,  for  as  I  am  informed, 
in  the  year  1708  there  was  a  complaint  made  by  the 
province  of  Virginia  against  the  government  of  Caroli- 
na, for  seizing  the  merchandize  of  several  of  the  Virgin- 
ia traders,  and  compelling  them,  in  an  arbitrary  manner, 
to  pay  a  duty  for  their  said  goods  :  upon  which  complaint, 
the  then  Lords  Commissioners  of  trade  and  plantations, 
were,  upon  the  6th  of  September,  1709,  pleased  to  make 
a  report  to  her  late  Majesty  in  council,  and  were  there- 
in of  opinion,  that  the  government  of  Carolina  had  no 
rightful  power  to  lay  any  duty  upon  goods  carried  to 
those  western  Indians  by  the  inhabitants  of  Virginia  ; 
which  report  of  their  Lordships  was  afterwards  confirm- 
ed by  her  Majesty  in  council ;  notwithstanding  which, 
the  government  of  Carolina  did,  within  about  a  year 
after,  think  fit  to  pass  an  act,  entitled  "  an  act  to  oblige 
those  traders,  that  come  from  Virginia  to  other  neigh- 
bouring colonies  to  trade  with  the  Indians  or  white  per- 


596  OPINION  OP  EMINENT  LAWYERS. 

sons  living  within  this  province  and  government,  to  come 
first  to  Charleston,  and  take  out  licenses  to  trade,  and 
to  be  subject  to  the  like  regulations,  and  to  pay  the  same 
duties  of  import  with  the  inhabitants  of  this  province 
and  government,  who  trade  with  the  Indians  living  with- 
in the  bound,s  of  the.  same..  By  w-hjch  act,  they  did  en- 
act the  substance  of  what  is  passed  in  that  which  is  now 
under  consideration  ;  against  Ayhich  act,  the  said  then- 
Lords  Commissioners  of  trade  and  plantations  diid  like-- 
wise make,  a,  representation,  tt^at  it  was  not  proper  to  be. 
passed,  into  law  ;  upon  which,  by  order  in  council,  dated 
the  8th.  day  of  January,  1712,  the  Lords  proprietors  of 
the  province,  of  Carolina  were  commanded  to  take  care 
that  the  last-jnentionedj  act  should  be  immediately  re- 
pealed. 

My  Lords:; 

The  greatest  difference  that  I  can  observe,  between 
this  act  of  1721  and  that  of  1711,  is,  that  in  that  of  1711, 
the  Virginia  traders  are  expressly  namedi  an.d  the  duty 
openly  and  avowedly  laid  upon  them ;  whereas,  in  this 
act  of  1721,  the  Virginians  are  only  comprehended;  un- 
der general  words,  and  not  particularly  mentioned,  for  it 
is  enacted,  that  if  any  person*  or  persons  whatsoever, 
other  than,  siic^  as  duly  obtain  licenses  in  the  manner 
as  in  the.  act  particularly  mentioned,  shall  directly,  or- 
indirectly  visit,  frequent,  trade,  traffic,  or  barter,  with 
any  Indian  or  Indians  in  amity  with  the  government  of 
Carolina,  all  an,di  every  such  offender  and;  offenders  shall 
forfeit  the  sum,  of  two  hundred  pounds,  to  be  sued  for 
and  recovered  in  such  manner  as  in  the.  act  is  directed  ; 
and  the  inhabitants  of  Virginia,  not  being  able  to  carry 
on  their  trade  without  passing  through  some  of  the  re- 
motest parts  of  the  province  of  Carolina,  I  am  of  onin- 


OP    THE    NATIONAL    COMMERCE.  597 

ion,  that  they  will  be  comprehended  in  the  general  words 
of  this  law,  and  will  .foe  Disabled  from,  or,  at  least,  very 
much  disturbed  in,  carrying  on  their  trade,  unless  they 
shall  first  (under  the  difficulties  I  have  above  mention- 
ed) take  out  licenses  from;  the  commissioners  of  Charles- 
ton, according  to  the  directions  of  this  act :  and  if  I  may 
in  any  manner  depend  upon  such  information  as  I  have 
received  from  the  agent  of  the  province  of  Virginia,  it 
seems  probable  that  one  of  the  chief  ends  proposed  by 
the  framers  of  this  act  was  to  comprehend  the  Virginia 
traders,  hoping  that  they  might,  by  the  means  of  gen-- 
eral  words,  compass  what  they  had  formerly,  to  no  pur-- 
pose, attempted  in  express  terms, 

I  must  own,  that  what  I  have  now  laid  before  your- 
Lordships,  is  chiefly  founded  upon  such  informations  as 
I  have  received  from  the  Virginia  agent,  but  I  was  in-* 
duced  to  give  credit  to  his  accounts,  because  what  re- 
lates to  the  former  reports  made  by  your  Lordships'  pre-- 
decessors  will  appear  by  books  in  the  office ;  to  all  which 
I  would  beg  leave  to  add,  that  before  I  thought  it  prop-- 
er  to  make  a  report  upon  the  Virginia  informations,.  I 
sent  word  to  Mr.  Francis  Young,  (who  is  agent  for  the 
province  of  Carolina)  to  let  him  know  that  the  agent  of 
Virginia  had  lodged  with  me  objections  against  this  act 
being  passed,  in  order  that  he  might  have  an  opportuni- 
ty to  lay  before  me  such  reasons  as  he  should  think 
proper  to  urge  on  behalf  of  the  province  of  Carolina,  and 
in  defence  of  this  law.  But  he  never  thought  fit  to  lay 
before  me,  either  in  writing  or  otherwise,  any  consider- 
ations or  reasons  whatsoever  for  the  passing  of  the  said 
law. 

For  these  reasons,  therefore,  I  am  humbly  of  opinion 
that  this  act  is  not  proper  to  be  passed  into  law. 


598-  OPINIONS  OF  EMINENT  LAWYERS. 

I  have  also  perused  and  considered  the  several  other 
following  acts,  entitled  "  an  act  for  a  most  joyful  and 
just  recognition  of  the  immediate,  lawful,  and  undoubted 
succession  of  his  most  sacred  Majesty  King  George  to 
the  Crown  of  Great  Britain,  France  and  Ireland,  of  the 
province  of  South  Carolina,  and  all  other  his  Majesty's 
dominions;"  "an  act  for  establishing  the  tranquillity  of 
this,  his  Majesty's,  province  of  South  Carolina;"  "an 
act  for  confirming  and  continuing  the  several  acts  there- 
in mentioned,  and  for  collecting  the  arrears  of  taxes,  and 
confirming  judicial  proceedings  in  the  courts  of  law;" 
"an  act  for  preventing  the  spreading  contagious  distem- 
pers;" "an  act  for  the  speedy  recovery  of  small  debts;" 
"  an  act  for  the*  better  settling  and  regulating  the  mili- 
tia ;"  "  an  act  for  establishing  a  court  of  chancery  in 
South  Carolina ;''  "  an  act  for  maintaining  a  watch  and 
keeping  good  order  in  Charleston  ;"  "  an  act  to  alter  the 
bounds  of  St.  George's  parish  ;"  "an  act  against  exces- 
sive usury  ;"  "  an  act  to  empower  the  commissioners  of 
the  high  roads,  &c.  to  alter  the  same  for  the  better  con- 
veniency  of  the  inhabitants;"  "an  act  for  appointing 
agents  to  solicit  affairs  in  England  ;"  "  an  act  to  ascer- 
tain the  manner  of  electing  members  of  assemblv,  and  to 

<_?  */   / 

appoint  who  shall  be  deemed  capable  of  choosing,  or  be- 
ing chosen,  members  ;"  -'an  act  for  establishing  precinct 
and  county  courts;"  "an  act  for  ascertaining  public  of- 
fices, fees,  &c.;"  "an  act  for  erecting  the  settlement  of 
Wineau,  in  Craven  county,  into  a  distinct  parish  from 
Saint  James's  Santee,  in  the  said  county;"  and  "an  act 
for  repairing  the  causeway,  leading  to  Ashley  river,  fer- 
ry, &c.  and  for  vesting  the  ferry  in  Captain  Edmund 
Bellinger:"  to  all  which,  I  have  no  objection  to  their 
being  passed  into  law. 

Get,  25,  1722.  RICH.  WEST. 


OP    THE    NATIONAL    COMMERCE.  599 

(11.)  Mr.  West's  opinion,  relating  to  Custom  House 
officers  being  concerned  in  trade  and  shipping* 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have  con- 
sidered of  the  statute  of  the  20th  of  Henry  VI.  chap,  5, 
by  which  it  is  enacted  "  that  no  customer,  &c.  shall  have 
a  ship  of  his  own,  use  merchandize,  keep  a  wharf,  or  inn, 
or  be  a  factor  ;"  and  I  am  of  opinion,  that  the  said  stat- 
ute is  still  in  force. 

This  statute  was  doubtless  intended  (as  is  manifest 
from  the  nature  of  the  mischief  mentioned  in  the  pre- 
amble, and  which  was  to  be  remedied  by  it)  to  extend 
to  all  custom-house  officers  in  general ;  but  as  great  al- 
terations have  been  made  in  the  manner  of  collecting 
and  managing  the  customs  since  the  time  of  this  stat- 
ute's being  enacted ;  and  as  no  penal  statute  can  by  law 
be  extended,  by  an  equitable  construction,  beyond  the 
express  words,  I  apprehend,  that  in  case  your  Lordships 
should  have  any  thoughts  of  making  it  applicable  to  all 
the  custom  officers,  as  they  stand  at  this  time,  it  will  be 

/  v  I 

necessary  to  have  a  bill  brought  into  parliament  for  that 
purpose. 

Nov.  26,  1720.  RICH.  WEST. 

(12.)  Ilie  report  t~>  the  King,  nf  the  Attorney  and  So- 
licitor-General, North  ey  and  llwmpson,  on  a  proposed 
charter  to  a  corporate  body,  for  insuring  ships. 

To  the  King's  most  excellent  Majesty. 
May  it  please  your  Majesty. 

In  humble  obedience  to  your  Majesty's  commands  to 


600  OPINIONS  OF  EMINENT  LAWYERS. 

us,  by  your  order  in  council,  dated  the  second  day  of 
February  last ;  we  have  considered  of  the  annexed  pe- 
tition of  Sir  Justus  Beck,  and  two  hundred  and  eighty- 
six  others,  in  behalf  of  themselves,  and  of  several  others, 
merchants  and  traders  of  Great  Britain  and  Ireland, 
whereby  they  represent,  that  the  merchants  and  traders 
of  your  Majesty's  dominions  do  frequently  sustain  very 
great  losses,  for  want  of  an  incorporated  company  of  in- 
surers-, With  a  joint  stock,  to  make  good  all  such  losses 
and  damages  of  ships  and  merchandizes  at  sea  as  should 
be  insured  by  them ;  that  the  establishment  of  such  a 
company,  by  your  Majesty's  royal  authority,  will  be  a 
very  great  security  and  encouragement  to  trade  and  nav- 
igation, enable  the  merchants  to  make  quicker  returns, 
employ  more  hands,  increase  the  number  of  seamen, 
greatly  augment  your  Majesty's  customs,  and  preserve 
many  of  your  good  subjects  and  their  families  from  that 
ruin  to  which  they  are  now  exposed  by  being  assurers 
in  a  private  capacity  •  that  they  have  entered  into  a 
Voluntary  subscription  to  raise  a  fund  for  erecting  such 
a  company  of  assurers  as  may  effectually  make  good  all 
the  losses  assured  by  them,  (which  will  in  nowise  inter- 
fere with  any  other  corporation),  and  having  a  sufficient 
sum  subscribed  for  that  purpose,  they  most  humbly  pray 
that  your  Majesty  will  be  graciously  pleased  to  grant 
your  royal  letters  patent,  for  incorporating  them,  with 
such  others  as  shall  subscribe  thereunto,  and  their  suc- 
cessors, to  enable  them,  by  a  joint  stock,  to  manage  and 
carry  on  the  said  undertaking,  under  such  rules  and  reg- 
ulations, by  such  name,  and  with  such  powers  and  priv- 
ileges for  their  better  government,  as  your  Majesty  in 
your  great  wisdom  shall  be  pleased  to  direct,  not  to  ex- 
clude particular  assurers  from  assuring  ships  and  mer- 
chandize as  they  now  do. 


.  OF    THE    NATIONAL    COMMERCE.  601 

As  we  have  also  considered  of  the  annexed  petition  of 
Sir  Gilbert  Heathcote,  and  three  hundred  and  seventy- 
five  others,  merchants  and  traders  of  the  city  of  London, 
on  behalf  of  themselves  and  others,  merchants  and  tra- 
ders of  this  kingdom  ;  whereby  they  represent,  that  for 
the  promoting  and  encouraging  the  trade  of  this  nation, 
it  hath  been  found  absolutely  necessary  to  make  insur- 
ance on  ships  and  goods  at  sea,  and  that  at  as  low  and 
moderate  rates  as  possible,  which  is  a  very  great  ease 
and  benefit  to  trade ;  that  a  number  of  office-keepers  at 
the  exchange  at  London,  who  act  as  brokers,  have,  for  a 
great  many  years  past,  made  it  their  constant  business 
to  procure  persons  of  good  substance  to  insure  and  un- 
derwrite policies,  by  whose  means  the  merchants  have 
been  regularly  served;  that  by  these  means,  at  this 
time,  the  premiums  given  in  London  for  insuring  ships 
and  goods  are  much  lower  than  in  any  other  part  of  Eu- 
rope ;  and,  therefore,  many  orders  for  insuring  in  Lon- 
don are  sent  from  foreign  parts ;  whereas,  formerly,  great 
part  of  our  adventures  were  forced  to  be  insured  abroad ; 
that  to  establish  a  corporation  for  insuring  ships  and 
merchandizes  will  be  a  great  discouragement  to  the  pres- 
ent known  method  of  insurance,  without  their  giving 
greater  security  to  the  insured  than  they  now  have ;  and 
it  may  be  so  managed  as  entirely  to  fall  into  the  corpor- 
ation, to  the  great  disappointment  of  the  bold  trader^  by 
undue  preferences,  and  delaying  and  refusing  to  insure 
on  exigencies,  when  ships  are  missing,  which  frequently 
happens,  and  in  stormy  weather:  humbly,  therefore, 
praying  that  your  Majesty  would  be  graciously  pleased 
to  hear  them  by  their  counsel,  to  offer  reasons  against 
the  passing  a  charter  for  incorporating  a  number  of  per- 
sons for  insuring  ships  and  merchandizes  at  sea.  And 
77 


602  OPINIONS    OP    EMINENT    LAWYERS. 

by  a  third  petition,  hereunto  also  annexed,  the  merchants 
of  Bristol  have  desired  to  be  heard  by  their  counsel 
against  the  passing  the  said  charter ;  and  we  have  heard 
the  petitioners  for  the  charter,  and  also  the  petitioners 
of  London  against  the  charter,  by  their  counsel,  none 
appearing  for  the  petitioners  of  the  city  of  Bristol. 

And  for  inducing  your  Majesty  to  incorporate  the  sub- 
scribers, it  has  been  insisted  on  that  the  insuring  of 
ships  is  for  the  benefit  of  trade ;  and  that  insurances 
will  be  best  made  by  a  corporation,  and  they  will  do  it 
at  the  easiest  rates  ;  and,  that  in  a  corporation,  the 
transaction  for  an  insurance  will  be  quicker,  there  being 
only  one  subscriber,  which  will  be  done  at  once  \  where- 
as, by  the  method  now  used,  as  is  stated  in  the  petition 
against  the  incorporation,  the  office-keepers  are  to  pick 
up  the  insurers  here  and  there,  as  they  can,  which  takes 
up  much  time  and  is-  inconvenient ;  and  that  the  corpor- 
ation, it  is  probable,  will  be  more  diligent  than  single 
persons,  the  credit  of  the  corporation  depending  on  it  \ 
that  there  will  be  fewer  suits  upon  policies  than  at  pres- 
ent, for  as  the  present  insurance  is  made,  every  under- 
writer may  try  his  particular  insurance,  and  in  the  case 
of  a  corporation  there  can  be  but  one  suit,  and  this  can- 
not be  a  monopoly,  the  merchants  being  at  liberty  to  in- 
sure with  the  corporationr  or  with  private  persons,  as 
they  shall  think  fit;  and,  therefore,  it  will  always  be  the 
interest  of  the  corporation  to  insure  on  moderate  terms ; 
and  the  incorporating  insurers  will  be  an  ease  to  those 
who  insure  with  themf  for  that  the  corporation  is  one 
against  whom  the  suit  may  be  brought;  whereas,  if 
twenty  or  thirty  were  to  join  in  a  partnership  to  insure, 
every  one  must  be  named  in  any  suit  to  be  brought 
against  them ;  that  the  insured  will  have  better  securi- 


OP    THE    NATIONAL    COMMERCE.  603 

ty  from  a  corporation  than  they  can  have  from  particu- 
lar persons  ;  for  that  a  million  of  money  is  subscribed  by 
the  subscribers  to  be  the  fund  of  the  said  corporation, 
whereby  there  will  always  be  a  fund  to  answer  their 
policies,  so  that  there  is  no  probability  of  the  corpora- 
tion failing  ;  whereas,  as  the  present  use  is,  many  of  the 
insurers  continually  fail,  and  there  is  no  deposit  what- 
soever to  secure  their  insurances.  To  avoid  which,  this 
corporation  with  a  fund  is  proposed ;  besides,  the  pres- 
ent insurers,  over  and  above  the  ten  per  cent,  mentioned 
in  the  common  policies  to  be  abated,  will  not  pay  with- 
out suit,  unless  a  further  abatement  of  six  pounds  per 
cent,  be  made ;  whereas,  if  there  were  a  corporation,  they 
durst  not  trifle  or  delay  as  private  persons  do,  but  must 
immediately  pay  their  losses,  for  the  credit  of  the  said 
company  :  and  as  to  the  difficulty  of  making  a  corpora- 
tion to  appear  to  suits  to  be  brought  against  them,  they 
propose  that  their  incorporation  shall  be  subject  to  be 
determined  by  your  majesty,  if  they  do  not  appear  as 
readily  as  private  persons  are  obliged  to  do, 

And,  by  the  affidavits  annexed  to  the  petition  for  the 
charter,  John  Emmet  deposes,  that  he  has  for  several 
years  traded  to  Holland  and  Hamburgh,  and  has  not 
made  one  insurance  in  Great  Britain,  being  of  opinion 
that  the  insurers  would  be  safer  and  cheaper  at  Amster- 
dam, and  that  the  same,  or  the  greatest  part  thereof, 
have  been  constantly  made  there ;  and  Robert  Jackson, 
of  Amsterdam,  merchant,  and  John  Gascoign.  of  Rotter- 
dam, merchant,  severally  depose,  that  it  is  frequent  and 
customary  for  merchants  and  others  residing  in  England 
to  give  orders  to  merchants  in  Holland  to  cause  insur- 
ance to  be  made  for  them  there,  and  that  they  have  fre- 
quently received  such  orders  and  done  the  same  accord- 


604  OPINIONS    OF    EMINENT    LAWYERS. 

ingly,  and  they  know  it  to  be  almost  a  dally  practice  ; 
and  Robert  Fletcher,  of  London,  merchant,  deposes,  that 
being  lately  in  Holland,  and  frequently  in  conversation^ 
with  several  merchants  there,  and  often  discoursing  of  a 
subscription  then  going  on  at  London  towards  a  fund  for 
insuring  ships  and  merchandize,  they  very  much  approve 
of  the  project,  believing,  if  completed,  it  would  be  a  bet-* 
ter  security  for  the  insured  than  any  method  now  in 
practice. 

The  counsel  for  the  petitioners  against  the  incorpora- 
tion insisted  that  the  subscription  is  made  only  for  the 
sake  of  stock-jobbing,  and  if  a  corporation  should  be 
erected,  there  will  be  another  stock  to  transact,  and  up- 
on the  view  of  the  subscribers,  very  much  the  greatest 
part  thereof  being  of  different  trades  from  the  trade  of 
merchandizing,  it  is  evident  that  that  is  the  design,  and 
that  there  is  no  reason  to  incorporate  the  said  subscri- 
bers unless  the  utility  and  conveniency  of  the  proposal 
be  self-evident ;  that  insurance  of  ships  is  necessary  for 
foreign  trade ;  and  if  the  present  method  be  not  found 
inconvenient,  there  is  no  reason  to  set  up  a  corporation 
for  insuring ;  besides,  that  by  the  present  method,  many 
families  are  supported,  and  there  will  be  no  reason  to 
destroy  them  without  absolute  necessity,  All^  or  the 
greatest  part  of  the  petitioners  against  the  said  charter, 
are  merchants.,  who  are  to  have  the  benefit  of  insuran- 
ces ;  and  therefore,  they  insist,  it  is  reasonable  to  believe, 
if  such  corporation  would  be  a  public  benefit  they  would 
not  oppose  the  same,  and  they  also  insist  that  the  meth- 
od of  insurance  is  now  on  as  good  a  foot  as  it  can  be 
put ;  that  the  insurance  is  now  lower  here  than  in  any 
country  in,  Europe,  and  for  that  reason  very  many  for- 
eign merchants  make  their  insurances  here ;  that  your 


OF    THE    NATIONAL    COMMERCE.  605 

Majesty  cannot  make  a  monopoly  by  granting  to  a  cor- 
poration the  sole  power  of  insuring,  exclusive  of  others, 
notwithstanding  which,  the  granting  such  corporation 
will,  in  consequence,  end  in  a  monopoly ;  for,  if  such 
company  as  desired  should  be  erected,  having  so  large  a 
stock,  they  will  in  all  probability  insure  very  low  at  the 
beginning,  to  bring  people  to  them,  and  thereby  discour- 
age the  present  method  of  insuring,  and  oblige  the  peo- 
ple who  are  now  concerned  therein  to  leave  off  all 
thoughts  of  insuring,  and  then  the  company  would,  put 
such  terms  on  the  insured  as  they  should  think  fit ;  and 
from  the  nature  of  insurances,  the  more  places  the  bet- 
ter, for  if  one  will  not  insure,  another  may ;  but  if  the 
present  insurers  should  be  suppressed,  and  the  corpora- 
tion be  the  only  place,  they  will  insure  only  on  their 
own  terms,  and  there  will  be  no  other  place  to  apply  to ; 
and  as  to  the  objection  that  the  credit  of  the  corporation 
will  be  concerned,  it  was  answered,  that  a  corporation 
has  no  sense  of  shame  as  private  persons  have,  and  will 
stand  out  suits  longer  than  private  persons,  because  rich- 
er. Besides,  the  dispatch  of  a  corporation  will  not  be 
like  that  of  private  persons,  they  may  act  but  at  certain 
hours,  may  keep  holydays,  and  in  disputable  cases,  may 
make  references,  and  expect  reports,  which  may  occa- 
sion great  delays,  which  is  not  practicable  in  insurances 
as  now  managed.  And,  besides,  after  they  have  dis- 
couraged other  insurers,  if  they  should  then  insure  only 
at  their  own  rates,  it  will  be  of  great  inconvenience  to 
merchants ;  and  as  to  the  objection  that  private  insurers 
often  fail,  it  was  said,  it  cannot  be  made  appear  but  the 
company  may  stop  payments  in  case  of  a  war,  and  it 
would  be  of  infinite  inconvenience  to  trade  if  the  method 
of  insurance  should  prove  impracticable  ;  besides,  in  ca- 


606  OPINIONS    OF    EMINENT    LAWYERS. 

ses  of  insurances  as  now  used,  the  body,  land,  and  goods 
of  the  insurers  are  liable ;  and,  in  case  even  of  an  exe- 
cution against  a  company,  it  will  be  very  difficult  to  find 
where  to  execute  the  same  ;  and  further,  that  the  com- 
pany cannot  be  prevented  from  diverting  their  money  to 
other  uses. 

They  also  produced  several  merchants ;  and  Mr.  John 
Bernard  declared,  that  at  present  the  best  men  upon 
the  exchange  insure,  and  very  few  Englishmen  insure 
abroad,  and  many  foreigners  make  their  insurances 
here. 

Mr.  Shephard  affirmed,  the  insurances  here  are  made 
very  easy  and  o"n  better  terms  than  abroad,  and,  for  that 
reason,  many  foreigners  insure  here  and  few  English- 
men abroad. 

Mr.  Heysham  declared,  that  there  is  no  complaint  at 
present  of  the  insurances  here,  and  the  setting  up  a  cor- 
poration will  make  the  present  insurers  leave  off  their 
inquiries  into  the  nature  of  ships  and  their  voyages, 
whereby  they  may  the  better  know  how  to  insure,  where- 
by the  whole  business  will  fall  into  the  corporation.  Mr. 
Morris,  Mr.  Godfrey,  Mr.  Chester,  Mr.  Harris,  Mr.  Rat- 
cliffe,  Mr.  Perry,  and  Mr.  Hinkle,  all  agree,  there  is  no 
occasion  for  a  corporation,  but  that  the  same  will  be 
prejudicial. 

By  the  affidavits  of  Robert  Aston,  James  Mendez,  and 
G.  T.  Guigier,  annexed  to  the  petition  against  the  incor- 
poration, it  appears  that  great  insurances  have  been 
from  time  to  time  made  here  on  account  of  foreigners, 
on  ships  at  sea,  for  very  great  sums  of  money ;  which 
insurances,  Mr.  Aston  deposes,  were  made  at  low  and 
easy  rates,  and  cheaper  than  at  any  other  place.  And, 
he  further  says,  that  for  the  most  part  he  has  been  al- 


OP    THE    NATIONAL    COMMERCE.  607 

lowed  by  his  correspondents  after  the  rate  of  one  per 
cent,  and  half  per  cent,  for  standing  bound  for  the  insur- 
ers, over  and  above  the  usual  allowance  of  half  per  cent. 
for  causing  the  insurance  to  be  made  ;  and^  that  he  nev- 
er lost  one  penny  for  standing  bound  for  the  insurers : 
and  the  said  James  Mendez   deposesj  that  the  reason  of 
his  orders  from  foreigners  to  insure  has  been  from  the 
lowness  of  the  premiums  given }   and  for  the  vast  sums 
that  are  easily  insured  here>  and  the  greater  facility  of 
recovering  losses  and  averages  with  less  proof  than  is 
required  in  other  places  ;  and,  that  great  advantages  ac- 
crue to  the  kingdom  by  foreigners  causing  their  insur- 
ances to  be  made  here  ;  and,  that  the  business  of  insur- 
ing is  at  present  so   well  done  in  London^  and  in  such 
great  reputation  both  at  home  and  abroad  that  it  cannot 
be  better,  as  he  apprehends  ;  and  he  verily  believes,  that 
if  a  new  office  of  insurance  should  be  erected  in  the  man- 
ner proposed,  that  he  shall  not  be  able  to  do  great  part 
of  his  business  of  insurance,  several  orders  being  very 
intricate,  and  with  so  many  conditions,  although  very 
fair  and  just,  that  he  judges  a  new  office  would  not  ac* 
cept  them  on  any  terms  ;  and  that  the  insurers  being  of 
value,  he  hath  frequently  undertaken,  at  the  request  of 
his  correspondents,  to  whom  their  worth  was  not  so  well 
known,  to  make  good  the  said  policies,  in  case  of'  loss, 
for  so  low  a  consideration  as  ten  shillings  per  cent,  and 
Guigier  deposes  the  same. 

To  which  it  was  replied  011  behalf  of  the  petitioners 
for  the  corporation,  that  it  appears  the  merchants  are 
divided  in  their  opinions  on  this  matter,  some  being  for 
and  others  against  the  corporation ;  and,  that  it  is  plain 
a  company  would  be  useful  to  the  public  and  to  trade  : 
for  that  the  policies  would  be  sooner  done  by  a  corpora- 


608  OPINIONS    OF    EMINENT    LAWYERS. 

tion  than  by  the  several  persons  who  now  underwrite 
policies  ;  and  that  the  security  would  be  better  ;  and  it 
is  plain  that  the  present  offices  may  go  on  as  well  as  the 
corporation ;  and  where  insurances  are  cheapest,  there 
will  be  the  most  custom  ;  and  if  the  company  should  in- 
sist on  unreasonable  deductions  or  delays,  no  person  will 
insure  with  them;  and  that  it  is  plain,  if  the  grant  will 
not  make  a  monopoly,  the  consequence  will  not  make  it 
so  ;  and  if  a  corporation  be  erected,  it  will  be  the  inter- 
est of  foreigners  to  insure  with  them,  whereby  they  will 
save  the  premium  for  insuring  the  insurers  :  and  they 
produced  Sir  Justus  Beck,  who  declared  his  opinion  that 
all  foreign  insurances  would  be  made  with  the  company ; 
and  that  about  three  years  since,  many  English  insured 
at  HambrO)  as  judging  it  more  secure ;  and  Sir  John 
Williams  declared,  he  thought  the  corporation  would  be 
of  advantage  to  trade;  and  Mr.  Clarke  declared,  he 
thought  the  corporation  would  be  for  the  benefit  of  trade, 
for  that  thereby  there  would  be  one  place  more  to  insure 
at  than  now  there  is ;  and  there  would  be  great  security 
from  such  a  company,  whereas^  there  are  frequently 
great  losses  by  private  insurers. 

On  the  whole  matter,  it  is  agreed  on  all  sides >  that  the 
insuring  of  ships  is  of  absolute^necessity  for  the  carrying 
on  of  foreign  trade :  and  that  the  same  has  been  always 
managed  in  the  method  the  same  is  now  in ;  and  it  has 
not  been  made  out  that  there  is  any  corporation  in  Eu- 
rope for  insuring  ships  ;  that  the  want  of  a  good  method 
of  insuring  will  be  very  fatal  to  trade  ;  and  we  are  hum- 
bly of  opinion,  that  the  making  an  experiment  in  a  thing 
of  this  nature,  if  it  should  prove  amiss,  would  be  of  the 
utmost  consequence  to  the  trade  of  this  nation,  and  that 
it  so  highly  concerns  trade  and  commerce  that  it  will  be 


OP  THE  NATIONAL  COMMERCE.  609 

proper  for  the  consideration  of  the  parliament;  and, 
therefore,  we  cannot  advise  the  erecting  a  corporation 
for  the  insuring  ships  and  goods  at  sea,  against  which 
there  are  so  many  great  objections,  especially  the  meth- 
od now  used  being  approved  of  both  at  home  and  abroad ; 
and  we  are  not  able  to  determine  of  what  consequence 
the  erecting  of  another  corporation  in  London,  with  a 
stock  of  a  million  of  money,  may  be  to  the  public. 

The  petitioners  for  the  corporation  have  laid  before  us 
several  heads  for  a  charter,  if  your  Majesty  shall  be  gra- 
ciously pleased  to  grant  the  same ;  but  the  same  not 
having  been  referred  to  us,  and  the  opponents  opposing 
a  charter  in  general,  they  did  decline  entering  into  the 
consideration  thereof  >  and,  therefore,  we  have  not  pre- 
sumed to  lay  the  same  before  your  Majesty. 

March  12,  1717.  EDW.  NORTHEY. 

WM.  THOMPSON. 

(13.)  T/'ie  opinion  of  the  Attorney- General,  Levinz,  on 
the  King's  power  to  grant  a  patent  for  making  Hack  pep- 
per whits'. 

To  the  King's  most  excellent  Majesty; 

The  humble  petition  of  William  Crouch,  of  London, 
merchant,  and  James  Whiston,  of  London,  brokerj 
sheweth, 

That  your  petitioners  have  lately,  with  great  industry 
and  charge,  found  out  and  discovered  a  new  invention  of 
making  black  pepper  white,  and  merchantable,  which 
may  prove  of  extraordinary  benefit  and  advantage  to 
your  Majesty's  trading  subjects. 

Forasmuch,  therefore",  and  for  that  it  was  never  known 
or  done  by  any  before  within  these  your  Majesty's  king- 
doms, your  petitioners  humbly  pray  your  Majesty  would 
78 


610  OPINIONS    OF    EMINENT   LAWYERS. 

be  graciously  pleased  to  grant  them  a  patent  for  the  sole 
use  of  the  said  invention  during  the  space  of  fourteen 
years,  according  to  the  statute  in  that  case  provided  : 
and  they  shall  pray,  &c. 

At  the  court  at  Newmarket,  September  28, 1680.  His 
Majesty  is  graciously  pleased  to  refer  the  consideration 
of  this  petition  to  Mr.  Attorney  or  Mr.  Solicitor-general, 
to  report  what  his  Majesty  may  fitly  do  in  it  for  the 
petitioner's  gratification ;  whereupon,  his  Majesty  will 
declare  his  future  pleasure. 

SUNDERLAND. 

May  it  please  your  Majesty  ;  x 

I  humbly  conceive  your  Majesty  may  (if  so  graciously 
pleased)  grant  such  patent  as  is  desired,  if  the  same  be 
a  new  invention ;  but  before  it  be  done,  I  humbly  think 
it  advisable  that  the  merchants  might  be  heard  as  to 
what  inconvenience  may  thence  arise  to  the  pepper 
trade  which  is  very  considerable. 

October  12,  1680.  CRESWELL  LEVINZ. 

IV.  (1.)  Ike  Attorney-General,  Norlhey's  opinion  on 
foreign  coins. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  Jun.  your  secretary,  I  have  con- 
sidered of  the  inclosed  papers  mentioned  in  the  annex- 
ed letter,  and  do  humbly  certify  your  Lordships  that  the 
value  of  the  foreign  coins  is  well  established  by  her 
Majesty's  proclamation ;  and  the  tender  of  the  same, 
according  to  those  values,  is -a  legal  tender,  and  every 


OP   THE    LAW    OP   NATIONS.  611 

body  is  bound  to  take  them  at  those  values ;  but  if  any 
person  (as  the  persons  complained  of  do)  will  accept 
them  at  greater  values,  I  do  not  know  that  it  is  any 
offence,  being  to  the  prejudice  of  the  receiver,  none  be- 
ing obliged  to  take  them  in  payment  from  him  at  more 
than  they  are  settled  at  by  the  proclamation.  This 
mischief  we  labored  under  here  in  England,  till  by  the 
act  of  the  6th  and  7th  William  it  was  made  an  offence 
to  take  broad  money  at  more  than  it  was  current  for, 
and  I  am  apprehensive  this  mischief  will  not  be  remedied 
without  an  act  of  parliament  made  here,  to  lay  a  penalty 
on  all  persons  in  the  plantations,  who  shall  there  receive 
the  coin  at  other  values  than  they  are  directed  to  be 
current  at  by  the  proclamation.  If  the  proprietary 
governments  make  laws  to  give  those  coins  a  currency 
beyond  the  proclamation,  I  am  of  opinion  they  are  guilty 
of  a  high  misdemeanor,  and  .their  charters,  or  at  the  least 
the  power  of  making  laws,  may  be  seized  into  her  Ma- 
jesty's hands  by  quo  warranto,to  be  brought  against  them ; 
but  the  acts  of  particular  persons,  as  I  take  this  practice 
complained  of  to  be,  will  not  prejudice  the  charters  or 
corporations. 

Oct.  19,  1705.  EDW.  NOETHEY. 

Eighthly. — Of  the  law  of  nations,  which,  multifarious 
as  it  is,  may  for  the,  present  purpose,  be  considered  under 
two  heads:  1.  Of  treaties  with  powers,  and  the  breaches 
thereof ;  2.  Of  the  effects  arising  from  the  independence  of 
the  United  States. 

(1.)  2 he  opinion  of  Sir  Lcoline  Jenkins,  on  Captain 
Cook's  case. 

May  it  please  your  Majesty ; 
Upon  the  view  that  I  have  had  of  Captain  Cook's 


612  OPINIONS    OP    EMINENT    LAWYERS. 

proceedings  in  the  court  of  Spain,  and  particularly  of 
the  two  commissions,  or  sentences  given  by  the  Queen 
regent,  it  is  my  humble  opinion  tfrat  Captain  Cook  must 
prosecute  the  effects  of  those  two  sentences  at  the  Ha- 
vanna,  and  must  affect  the  ministers  of  justice  there 
with  a  denial  to  execute  the  Queen's  commissions,  or 
else  with  such  delays  as  amount  to  a  flat  denial,  before 
that  his  cause  be  ripe  for  the  grunting  of  reprisals. 

It  is  true  his  case  is  sad,  and  it  may  be  as  true  that 
these  sentences  were  given  not  with  any  intention  to 
remedy  him,  but  as  an  amusement  only,  and  with  a  de- 
sign to  put  him  off.  This  seems  to  be  the  judgment  of 
Sir  William  Godolphin,  your  Majesty's  ambassador  up-, 
on  the  place,  which  as  it  is  a  matter  of  state,  and  an  ac- 
count how  the  ministry  there  governs  itself  towards 
your  Majesty  in  this  juncture,  I  shall  not  presume  to  of- 
fer any  thing  to  your  Majesty  as  to  the  state  part  of  it ; 
but  as  to  the  matter  of  law  in  this  case,  I  do  humbly  lay 
it  as  a  ground,  that  reprisals  will  not  lie,  where  there  is 
neither  denial  of  justice  nor  a  delay  of  it  amounting  to 
a  denial. 

In  this  case  it  cannot  be  said  there  is  a  denial,  in  re- 
gard that  there  is  an  entire  satisfaction  awarded  in  the 
Queen's  commissions,  with  circumstances  of  seeming  fa- 
vor, all  appeals  being  absolutely  forbid,  and  all  necessa- 
ry power  for  the  due  execution  of  them  being  given  to 
the  proper  officer;  nov  yet  do  the  delays  suffered  in 
Spain  amount  to  a  denial  of  justice,  for  though  the  at- 
tendance there  was  for  nine  whole  months,  yet  a  judg- 
ment being  sued  for,  and  at  last  given,  that  delay  can- 
not be  said  to  amount  to  a  denial  of  justice. 

It  is  true,  and  a  great  mischief,  that  the  parties 
wronged  are  sent  to  the  Havannah  to  have  reparation 


OF    THE    LAW    OF    NATIONS.  613 

done  them;  yet,  I  must  confess,  I  cannot  understand 
how  it  could  have  been  otherwise  ordered  in  this  case ; 
and  if  a  spoil  were  committed  upon  Spaniards,  by  your 
Majesty's  subjects  of  Scotland,  or  Ireland,  upon  either  of 
those  coasts,  and  that  the  wrong  doers  were  there,  I 
know  not  how  such  Spaniards  complaining  here  could 
refuse  to  go  (when  your  Majesty  should  direct  it)  to 
seek  and  receive  their  remedy  and  the  execution  of  your 
Majesty's  award  and  pleasure,  from  the  justice  of  the 
place  where  the  injury  was  done. 

It  is  said,  indeed,  in  Captain  Cook's  memorial,  that 
Francisco  Lopez  de  Andrade,  one  of  the  spoilers,  and 
others  of  them,  were  in  Spain  while  the  Captain  was 
there ;  though  this  be  true,  yet  it  will  be  very  obvious- 
to  the  Spaniards  to  reply,  that  Captain  Cook  did  not 
sue  out  any  process  against  him,  and  if  he  had,  that  the 
said  Lopez  should  not  have  been  sheltered  from  the  pub- 
lic justice.  Thus  it  may  be  thrown  on  Captain  Cook 
to  shew  that  he  hath  begun  any  prosecution,  civil  or 
criminal,  against  Lopez,  and  that  justice  was  denied 
him,  else  his  complaint  that  he  is  not  like  to  meet  with 
Lopez  at  the  Havannah,  will  signify  little,  to  make  that 
circumstance  a  denial  of  justice. 

That  which  may  seem  hardest  in  Captain  Cook's  case 
is,  that  he  is  sent  to  Havannah,  to  those  who  have  al- 
ready flatly  denied  him  justice,  and  that,  though  they 
should  be  prevailed  with  to  proceed  to  execute  the 
Queen's  commissions,  yet  that  they  will  require  a  new 
liquidation,  and  fresh  proofs  of  the  losses  and  damages. 

To  this  they  will  answer  in  Spain,  first,  that  those  of 
the  Havannah  are  now  no  judges  on  the  merits  of  the 
cause,  but  ministers  only,  to  proQure  the  reparation  that 
the  Queen  hath  awarded.  As  to  the  new  liquidation, 


614  OPINIONS    OF    EMINENT    LAWYERS. 

they  will  say  that  they  must  be  allowed  to  govern  them- 
selves according  to  their  own  laws  and  forms  in  the 
manner  of  proceeding. 

They  will  further  confess  that  the  proofs  made  in  the 
admiralty  here  would  have  been  sufficient  to  have 
grounded  reprisals  upon,  had  these  sentences  for  satis- 
faction been  denied  him,  because  the  whole  matter  must 
then  have  been  taken  pro  confesso,  and  the  sum  in  proof 
must  have  been  the  sum  for  the  levying  of  which  the 
letters  of  reprisals  must  have  been  granted  and  limit- 
ed ;  for  all  reprisals  must  be  limited  to  a  certain  sum. 
But  the  Queen  having  not  condemned  the  wrong  doers 
in  the  sum  demanded  and  deposed  to  in  the  admiralty 
here,  the  law  there  (if  I  mistake  it  not)  allows  the  de- 
fendant being  seized  and  executed  upon,  to  bring  the 
plaintiff  to  a  new  liquidation. 

One  mischief  more  there  is  in  this  case ,  the  wrong 
doer  may  prove  insolvent,  or  be  dead  by  this  time,  or 
else  get  out  of  the  reach  of  the  justice  of  the  Havannah ; 
but  these  are  accidents  for  which  it  can  hardly  be  made 
out  that  the  crown  of  Spain  is  accountable  in  case  the 
courts  of  justice  are  otherwise  always  open ;  for  these 
casualties  are  such  as  do  frequently  intervene  in  all  the 
governments  in  the  world,  and  where  men  become  in- 
solvent, or  cannot  be  met  with,  there  is  no  remedy, 
though  the  government  itself  be  never  so  nearly  con- 
cerned either  in  its  own  revenue,  or  in  the  execution  of 
public  justice. 

All  these  mischiefs  put  together  give  but  little  pros- 
pect or  hopes  to  Captain  Cook  of  real  reparation,  yet 
they  are  not  (as  I  humbly  conceive)  of  that  nature  as  to 
excuse  or  dispense  with  him,  if  he  pretends  to  reprisals, 
from  using  all  means  and  diligence  possible  to  demand 
and  prosecute  the  execution  of  his  sentences  at  the  Ha- 


OF    THE    LAW    OF    NATIONS.  615 

vannah ;  for  till  he  hath  used  all  the  instances  and  dili- 
gence that  any  subject  of  Spain  would  be  obliged  to,  in 
his  case,  he  will  not  (as  I  humbly  conceive)  be  suffi- 
ciently founded  to  obtain  your  Majesty's  letters  of  re- 
prisals. 

This  run  will  be  extremely  tedious,  chargeable  and 
uncertain  in  the  success,  yet  I  can  think  but  of  one  way 
to  prevent  it,  it  is,  may  it  please  your  Majesty,  by  call- 
ing on  the  government  of  Spain  to  nominate  certain 
commissioners  on  each  side,  that  shall  hear  and  deter- 
mine this  and  all  other  differences  arising  from  depre- 
dations at  sea. 

The  third  article  of  the  treaty  of  Madrid  doth  ex- 
pressly mention,  and,  in  a  manner,  suppose  a  constitu- 
tion of,  and  recourse  to  such  commissioners,  in  order  to 
prevent  the  harsh  remedy  of  reprisals.  This  would  be 
much  the  shorter  way,  but  it  would  bring  on  such  reck- 
onings of  the  same  kind,  that  they  at  Madrid  do  threat- 
en to  charge  upon  your  Majesty's  subjects ;  however,  I 
humbly  take  leave  to  mention  it,  because  the  Queen  re- 
gent having  given  two  sentences  or  commissions  that 
have  the  countenance  of  an  entire  satisfaction  (for  so 
they  are  worded),  it  will  be  a  very  hard  matter  for  a 
stranger,  as  Captain  Cook  is,  not  to  make  one  false  step, 
but  to  bring  it  about  in  his  prosecution  so  to  affect  the 
justice  of  Spain  with  these  wilful  delays  as  may  be  fit 
for  your  Majesty  to  grant  reprisals  upon  ;  and  I  mention 
this  the  rather,  in  that  this  way  of  treating  by  commis- 
sioners for  depredations,  I  find  to  have  been  the  usual 
course  between  Queen  Elizabeth  and  her  neighbors. 

One  word  more.  I  humbly  crave  leave  to  intimate 
that  the  treaty  of  America  does  require  a  further  eluci- 
dation and  adjustment  by  consent  between  your  Majesty 


616  OPINIONS    OF    EMINENT    LAWYERS. 

and  that  Crown ;  for  it  appears  by  the  judgments  of  the 
Queen,  in  the  matter  of  the  Campeche  wood,  and  other 
matters  therein  touched,  that  they  in  Spain  are  before- 
hand with  your  Majesty,  and  do,  by  their  scedulas  reales, 
affix  a  new  interpretation  upon  the  treaty,  in  declaring 
what  shall  be  private,  or  not  private,  prize,  or  not  prize, 
without  communicating,  it  seems,  with  your  Majesty, 
and  without  any  publication  that  may  reach  your  Maj- 
esty's subjects. 

Oct.  8,  1675,  L.  JENKINS. 

I.     (1.)  The  opinion  of  Doctors  Exton  and  Lloyd,  how 
breakers  of  treaties  arc  to  be  punished  in  England. 

We  have  in  obedience  to  your  Lordships'  commands, 
considered  the  quaere  referred  to  us,  viz :  whether  the 
King  of  England,  having  made  alliance  by  treaty  and 
league  with  any  foreign  potentate,  and  therein  agreeing 
to  purish  with  extreme  rigor  such  as,  by  color  of  com- 
missions from  enemies  to  the  said  allies,  shall  take  arms 
against  the  King's  peace  and  treaties  proclaimed,  and 
spoil  the  King's  allies,  be  not  a  levying  of  war  against 
the  King,  and  punishable  by  death ;  or  what  crime  it  is, 
and  how  punishable?  It  is  our  humble  opinion,  that 
this  is  not  a  levying  war  against  the  King,  nor  by  the 
law  of  the  land  punishable  with  death ;  it  is  a  crime 
against  his  Majesty's  treaties  of  peace,  and  the  strict  pro- 
clamations he  hath  been  pleased. to  set  forth,  to  enjoin 
the  due  observance  of  them ;  it  is  also  an  offence  against 
the  law  of  nations,  and  by  the  civil  law  it  is  crimen  las® 
majestatis;  but,  by  the  law  of  England,  we  conceive  it 
to  be  no  more  than  a  confederacy  against  his  Majesty's 
crown  and  dignity,  and  by  the  statute  for  the  trial  of 
piracy,  the  28th  Henry  VIII,  c.  15,  punishable  only  by 


OP    THE    LAW    OP    NATIONS.  617 

fine  and  imprisonment,  and  there  is  an  offender  in  the 
like  kind  now  in  the  Marshalsea^  who  hath  accordingly 
been  so  punished. 

Nov.  29,  1677.  THOS.  EXTON. 

RICH.  LLOYD. 

(2.)  The  opinion  of  the  same  civilians,  on  the  offence 
of  accepting  commissions  to  cruise   against  the  King's 


At  the  committee  of  trade  and  plantations,  in  the 
council  chamber  at  Whitehall,  Tuesday,  the  13th  of  No- 
vember, 1677,  present, 

Lord  Privy  Seal.  Lord  Faulconbridge. 

Marquis  of  Worcester.        Mr.  Sec.  Coventry. 
Earl  of  Craven.  Mr.  Sec.  Williamson. 

Mr.  Chancellor  of  the  Exchequer. 

It  is  our  humble  opinion  that  this  is  not  levying  a  war 
against  the  King,  (namely,  taking  a  commission  from  a 
foreign  power,  to  cruise  as  a  privateer  against  the  King's 
allies,)  nor  by  the  law  of  the  land  punishable  by  death  : 
it  is  a  crime  against  his  Majesty's  treaties  of  peace,  and 
the  strict  proclamations  he  has  been  pleased  to  set  forth 
to  enjoin  the  due  observance  of  them.  It  is  also  an  of- 
fence against  the  law  of  nations;  and  by  the  civil  law  it 
is  crimen  Icesce  majestatis  ;  but  by  the  law  of  England, 
we  conceive  it  to  be  no  more  than  a  confederacy  against 
his  Majesty's  crown  and  dignity,  and  by  the  statute  for 
the  trial  of  piracy,  the  28th  Henry  VII  f.  cap.  15,  pun- 
ishable only  by  fine  and  imprisonment;  and  there  is  an 
offender  in  the  Marshalsea,  who  hath  accordingly  been 
so  punished; 

Nov.  21,  1677.  THOS.  EXTON. 

RICH.  LLOYD. 
79 


618  OPINIONS    OF    EMINENT    LAWYERS. 

(3.)  Ihe  opinion  of  the  Advocate-General,  Cooke,  ori 
making  reprisals  ^^Jpon  Portugal,  in  1709. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  and  considered  the  enclosed  papers  relating  to 
the  petition  of  Sir  William  Hedges,  and  am  humbly  of 
opinion,  that  the  confiscation  of  his  effects  by  the  King 
of  Portugal,  as  therein  stated,  is  a  manifest  violation  of 
the  law  of  nations. 

Her  Majesty  having  already  been  graciously  pleased 
to  interpose  on  the  behalf  of  the  petitioner,  I  would  hum- 
bly propose  this  further  method  to  be  pursued,  when  for 
state  reasons  it  may  be  thought  the  most  proper  junc- 
ture. 

1st.  That  her  Majesty  be  pleased  to  refer  to  the  court 
of  admiralty  the  liquidation  of  the  damages  sustained  by 
the  petitioner,  and  to  certify  the  same  to  her  Majesty, 
and  that  intimation  thereof  be  given  to  the  King  of 
Portugal's  minister,  that  he  may,  if  he  shall  think  fit7 
intervene,  whilst  that  report  is  under  consideration, 

2d.  That  her  Majesty  should  be  graciously  pleased,  by 
her  royal  letter  to  the  King  of  Portugal,  peremptorily  to 
demand  restitution  of  the  liquid  damages,  within  a  com- 
petent time,  to  be  therein  prefixed. 

3d.  That  if,  within  the  time  limited,  such  restitution 
be  not  made,  her  Majesty  be  then  graciously  pleased  to 
empower  the  petitioner  to  seize  any  merchandize  or  oth- 
er effects  of  the  King  or  of  his  subjects,  wheresoever  the 
same  may  be  found,  until  he  shall  be  justly  satisfied 
not  only  for  the  liquid  damages  he  has  sustained,  but 


OP    THE    LAW    OF    NATIONS,  619 

also  for  all  necessary  expenses  made  in  the  recovery 
thereof,  with  proviso,  that  the  petitioner  be  obliged  to 
give  an  account  of  his  proceedings,  by  virtue  of  such 
power. 

J.  COOKE. 
Doctors'  Commons,  Sept.  22,  1709. 

(4.)  Ilie  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Norlhey  and  Raymond,  upon  the  petition  of  several 
merchants,  whose  ships  had  been  taken  by  the  Danes. 

May  it  please  your  most  excellent  Majesty ; 

In  humble  obedience  to  your  Majesty's  commands, 
signified  to  us  and  Sir  Nathaniel  Lloyd,  your  Majesty's 
advocate-general,  by  Mr.  Secretary  St.  John,  we  have, 
in  the  absence  of  Sir  Nathaniel  Lloyd,  who  is  now  at 
Cambridge,  considered  of  the  several  petitions  of  George 
Wegg,  of  Colchester,  merchant,  and  of  Jonas  Alberg,  of 
London,  merchant,  and  Charles  Keen  and  Robert  Aw- 
borne,  merchants,  of  King's  Lynn,  setting  forth  that  the 
Danes  have  taken  several  ships,  bound  from  Sweden  to 
Great  Britain  on  the  petitioner's  accounts,  praying  your 
Majesty  to  afford  them  your  royal  protection  and  coun- 
tenance in  recovering  the  same,  by  directing  your  Maj- 
esty's envoy  in  Denmark  to  reclaim  the  same,  or  by  as- 
sisting them  in  their  claim ;  and  we  do  most  humbly 
certify  your  Majesty,  that  the  said  ships  and  goods. be- 
ing taken  by  the  Danes,  as,  and  insisted  on  to  be,  lawful 
prize,  the  petitioners  must  make  their  claims  and  prove 
their  respective  titles  to  the  same  in  the  court  of  admir- 
alty in  Denmark,  in  order  to  prevent  a  condemnation, 
and  to  obtain  a  restitution  thereof;  and  we  are  humbly 
of  opinion,  that  it  will  be  reasonable  and  just  for  your 
Majesty's  minister  at  Copenhagen  to  assist  the  petition- 


620  OPINIONS    OP    EMINENT    LAWYERS. 

ers  in  their  just  claims,  and  if,  after  their  titles  to  the 
ships  and  goods  shall  he  duly  proved  to  be  belonging  to 
your  Majesty's  subjects,  and  not  to  be  lawful  prizes,  and 
justice,  shall  be  denied  them  in  the  courts  of  admiralty 
and  the  courts  of  appeal  there,  if  any  such  be,  your  Maj- 
esty may  then  demand  satisfaction  for  your  said  subjects, 
from  the  crown  of  Denmark  ;  an(J  if  justice  be  not  then 
done  them,  the  petitioners  may  properly  apply  to  your 
Majesty  for  letters  of-marque  and  reprisal,  to  be  granted, 
them  against  the  subjects  of  Denmark,  it  being  made 
appear  to  your  Majesty  that  your  subjects  have  been  de- 
nied justice  in  Denmark. 

Sept.  7>  1711.  EDW.  NORTHEY. 

ROB.  RAYMOND. 

(5.)    IJie  report  of  several  civilians  on  the  seizure  of 
JBritish  vessels,  by  the  Spaniards,  in  the  West  Indies. 
Sir; 

Having  perused  Mr.  Pullein's  letter  from  Bermuda, 
January  9,  1703-4.  with  the  affidavits  of  Samuel  Sher- 
lock and  Samuel  Smith,  as  also  of  Francis  Jones  and 
John  Williams,  we  humbly  are  of  opinion,  that  in  case 
the  Lords  Commissioners  for  trade  and  plantations  think 
those  informations  to  be  true,  that  then  the  only  and 
proper  way  for  relief  will  be,  upon  a  representation  of 
this  matter  to  the  minister  for  Spain  residing  here,  and 
likewise  by  her  Majesty's  minister  at  the  court  of  Mad- 
rid, to  demand  reparation  and  redress  of  those  practices 
complained  of,  which  seem  very  prejudicial  to,  and  de- 
structive of,  the  trade  of  her  Majesty's  subjects  in  those 
parts ;  and  that  herein  no  time  should  be  lost :  which 
we  nevertheless  submit  to  their  Lordships'  judgment. 

C.  HEDGES.         R.  WOOD. 

NATH.  LLOYD.     HUM.  HENCHMAN. 

HEN.NEWTON.      Doctors'  Commons,  March,  4,  1703-4. 


OP    THE    LVW    OP    NATIONS.  621 

(6.)  2he  Advocate-General,  Doctor  Simpson's  opinion, 
on  the  project  of  a  treaty  of  commerce  with  Prussia., 

Sir: 

In  obedience  to  the  commands  of  the  Lords  Commis-- 
sion,ers  of  Trade  and  Plantations^  signified  to  me  by  your 
letter  dated  the  3rd  of  this  month,  I  submit  to  tl^eir 
judgment  the  following  observations,  which  have  occur-, 
red  to  me  on  the  perusal  of  the  project  of  a  treaty  of 
commerce  proposed  on  the  part  of  the  King  of  Prussia. 

If  this  project  should  be  carried  into  execution  upon 
the  footing  it  now  stands,  it  would  be  very  beneficial  to 
the  King  of  Prussia,  bu,t  in  my  opinion  disadvantage-, 
ous  to  Great  Britain,  especially  at  this  time  when  we 
are  engaged  in  a  war  with  France. 

By  this  project  nothing  is  to  be  declared  contraband 
but  what  relates  to  the  land  service,  and  the  King  of 
Prussia  is  to  be  empowered,  by  treaty,  to  carry  naval 
stores  and  all  equipage  for  the  sea  service  to  our  ene- 
mies, which,  by  the  law  of  nations,  he  is  not  at  present 
authorized  to  do ;  and  though  this  nation  will  have  a 
reciprocal  right  to  do  the  same,  yet,  as  the  King  of  Prus-« 
sia  is  not  a  maritime  power,  that  privilege  will  be  of  no. 
advantage  to  us. 

The  project  is  the  same  in  substance  as  the  treaty  be-> 
tween  Sweden  and  Great  Britain,  made  in  the  year  1661, 
and  if  it  should  be  thought  necessary  to  enter  into  any 
commercial  one  with  Prussia,  the  plan  of  that  treaty 
seems  to  be  as  little  prejudicial  to  us  as  any  extant;  but 
I  think  it  desirable  that  some  alterations  should  be  made, 
and  particularly  with  respect  to  contraband  and  the 
passport,  as  to  which  the  convention  with  Denmark,  in 
1091,  seems  to  be  a  better  plan.  The  contraband  speci- 


622  OPINIONS    OP    EMINENT    LAWYERS. 

fied  in  that  convention  extends  not  only  to  naval  stores, 
in  express  terms,  but  to  all  instruments  of  war,  either 
by  sea  or  land;  and.  more  strictness  is  there  required 
with  respect  to  the  oaths  of  the  masters  and  owners  of 
the  ship  and  cargo,  with  the  nature  of  it,  and  destina- 
tion of  the  voyage,  as  well  as  in  regard  to  the  obtaining 
of  the  passport,  and  the  form  thereof. 

I  do  not  recollect  an  instance  in  the  late  war  of  a 
Swedish  ship  being  taken,  furnished  with  a  passport 
agreeable  to  the  treaty  of  1661,  but  most  of  those  which 
were  taken  were,  upon  inquiry,  found  to  carry  contra- 
band, or  conceal  enemy's  property,  though  they  had 
passes  on  board  importing  the  contrary;  and  I  am  per- 
suaded that  unless  some  such  provision  be  made  as  is  in 
that  convention  with  Denmark,  relating  to  naturaliza- 
tion, and  making  freemen  and  burgesses,  great  frauds 
will  be  committed  under  colorable  passports,  which  may 
be  introductive  of  disputes  and  much  trouble. 

The  Swedes,  by  the  treaty  in  1661,  are  prohibited  car- 
rying provisions  to  the  enemies  ;  but  by  this  project  the 
King  of  Prussia  is  to  be  authorized  to  do  it.  But  if  it 
should  be  thought  reasonable  to  lay  him  under  a  re- 
straint, in  order  to  prevent  disputes  about  the  meaning 
of  the  word  comeatus  or  provisions,  it  should  be  declared 
what  species  of  provisions  should  be  deemed  contra- 
band. 

It  can  be  of  no  service  to  us  to  extend  by  treaty  the 
King  of  Prussia's  liberty  of  navigation  and  commerce  to 
all  the  seas  over  the  world,  and  particularly  to  those  of 
Asia  and  Africa  ;  but  possibly  the  King  of  Prussia  has  a 
view  of  making  some  settlement,  or  establishing  an  In- 
dia company,  for  he  would  not,  I  conceive,  under  the 
15th  article  of  the  project,  be  enabled  to  trade  to  our 


OF    THE    LAW    OP    NATIONS.  623 

settlements,  or  traffic  otherwise  than  has  been  there 
practised  by  him  ;  and  it  it  observable,  that  though  by 
the  5th  article  of  the  treaty,  in  1661,  the  confederates 
are  not  to  furnish  any  aid  or  supply  to  the  enemies  of 
the  other,  yet,  by  the  9th  article  of  the  project,  the  con- 
tracting parties  are  to  stipulate  not  to  succor  the  ene- 
mies of  the  other  by  sea  only,  and  if  any  of  our  allies 
whom  we  are  engaged  to  supply  with  our  natural  sea 
force,  should  be  at  war  with  him,  the  complying  with 
that  objection  may  perhaps  be  deemed  a  contravention 
of  this  treaty.  ' '/ 

The  llth  and  13th  articles  of  the  project  ought  to  be 
altered,  for  though  they  be  similar  to  the  12th  and  14th 
articles  of  the  treaty  in  1661,  yet  that  part  of  them  re- 
lating to  the  punishment  therein  stipulated  to  be  inflict- 
ed on  transgressors  ought  not  to  stand ;  as,  I  conceive, 
his  Majesty  cannot,  by  any  treaty,  make  his  subjects  li- 
able to  other  punishments  than  what  the  laws  of  this 
kingdom  do,  and  that  is  costs  and  damages  for  the  of- 
fence, to  be  recovered  in  the  admiralty  court. 

With  these  observations,  I  have  taken  the  liberty  to 
send  their  Lordships  a  copy  of  the  instructions  which 
were  given  to  privateers  in  1702,  drawn  pursuant  to  the 
treaty  with  Sweden  in  1661,  and  the  convention  with 
Denmark  in  1691 ;  to  which  is  annexed  the  forms  of 
the  oaths  and  passports,  as  they  may  probably  be  useful 
in  the  consideration  of  the  project  for  the  treaty  pro- 
posed. 

ED.  SIMPSON. 
Doctors'  Commons,  June  14,  1756. 

(7.)  2 he  Advocate-General,  Di\  Paid,  on  the  mer- 
chants of  Minorca  trading  with  Algiers. 


624  OPINIONS    OP    EMINENT    LAWYERS, 

To  the  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 

In  obedience  to  your  Lordships'  commands,  signified  to 
me  by  Thomas  Hall  Esq;,  referring  to  me  a  report  of 
several  merchants  of  Port  Mahon,  relating  to  the  trade 
to  the  kingdom  or  government  of  Algiers,  which  has 
been  submitted  to  Lieutenant  General  Blakeney,  the 
Lieutenant-Governor  of  Minorca,  containing  the  senti- 
ments of  those  merchants,  with  regard  to  the  trade  be- 
tween the  state  of  Algiers  and  that  island,  and  to  what 
might  be  most  advantageous  to  his  Majesty's  subjects  iii 
general,  trading  to  tbfe  Mediterranean ;  which  having 
been  laid  before  their  Excellencies  the  Lords  Justices, 
and  by  them  referred  to  your  Lordships,  for  your  con- 
sideration and  report  how  far  the  request  of  those  mer- 
chants may  be  complied  with  agreeable  to  the  maritime 
law ;  and  it  being  your  Lordships'  direction  to  me,  that 
I  should  report  my  humble  opinion  immediately  (the  af- 
fair admitting  no  delay)  how  far  the  matters  contained 
in  the  said  report  are  consistent  with  the  maritime  law : 
I  humbly  certify  your  Lordships,  that  I  conceive  the 
several  propositions  and  regulations  recited  and  clearly 
set  forth  in  the  merchants'  report,  are  reasonable,  and 
highly  beneficial  to  trade  and  navigation,  and  no  ways 
contrary  to  the  maritime  law,  the  principal  view,  pur- 
pose, and  intention  of  that  law  being  to  encourage  and 
protect  commerce  at  sea. 

There  are  at  present  articles  of  peace  and  commerce" 
between  Great  Britain  and  Algiers,  ratified,  confirmed, 
and  renewed,  the  29th  of  October,  1716.  The  present 
rules,  under  your  Lordships'  consideration,  are  as  bene- 


OP    THE    LAW    OF    NATIONS.  625 

ficial  to  trade  as  those  already  established,  and  more  ex- 
plicit and  plain ;  and,  consequently,  as  I  humbly  appre- 
hend, merit  your  Lordships'  approbation. 

G.  PAUL. 
Doctors'  Commons,  July  18,  1750. 

(8.)  Ihe  opinion  of  the  Advocate,  Attorney,  and  Solic- 
itor- General,  Paul,  Hydcr,  and  Murray,  Iww  far  salvage 
was  due  on  a  Spanish  ship  and  cargo,  that  had  been 
stranded  in  North  Carolina. 

Some  Spanish  vessels  having  been  wrecked  on  the 
coast  of  North  Carolina,  it  was  held  by  Dr.  G.  Paul,  At- 
torney-General Ryder,  arid  Solicitor  Murray,  that  noth- 
ing was  due  as  salvage,  though,  for  mere  labor  in  saving 
the  cargoes,  a  reasonable  compensation  only  was  due  ; 
that  the  governor  ought  not  to  have  asked  any  duty  or 
gratification :  they  think  the  cargo  is  in  the  nature  of  a 
pledge  for  the  freight. 
June  4, 1751. 

(9.)  Ihe  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Yorlce  and  2albot,  on  the  duration,  of  the  treaty  of 
neutrality,  in  1686. 

To  the  Right  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  desiring  our  opinion  upon  the  le- 
gality of  the  following  article  in  his  Majesty's  general 
instructions  to  his  several  governors  in  America,  relat- 
ing to  the  treaty  of  peace  and  neutrality  in  America, 
made  between  England  and  France,  in  1686,  we  have 
considered  the  said  article,  which  is  in  these  words,  viz : 
80 


626  OPINIONS    OP    EMINENT   LAWYERS. 

"  Whereas,  by  the  5th  and  6th  articles  of  the  treaty  of 
peace  and  neutrality  in  America,  concluded  between 
England  and  France,  the  16th  day  of  November,  1686, 
the  subjects,  inhabitants,  &c.  of  each  kingdom  are  pro- 
hibited to  trade  and  fish  in  all  places  possessed, or  which 
shall  be  possessed,  by  them,  or  either  of  them,  in  Amer* 
ica ;  and  that  if  any  ships  shall  be  found  trading  contra- 
ry to  the  said  treaty,  upon  due  proof  the  said  ships  shall 
be  confiscated ;  but  in  case  the  subjects  of  either  king 
shall  be  forced  by  stress  of  weather,  enemies,  or  other 
necessity,  into  the  ports  of  the  other,  in  America,  they 
shall  be  treated  with  humanity  and  kindness,  and  may 
provide  themselves  with  victuals  and  other  things  nec- 
essary for  their  sustenance  and  reparation  of  their  ships, 
at  reasonable  rates,  provided  they  do  not  break  bulk,  nor 
carry  any  goods  out  of  their  ships,  exposing  them  to  sale, 
nor  receive  any  merchandize  on  board,  under  penalty  of 
confiscation  of  ship  and  goods  '"  notwithstanding  which 
treaty,  we  are  given  to  understand  that  an  illegal  trade 
has  been  carried  on  between  our  plantations  and  the 
French  settlements  in  America,  on  pretence  that  there 
is  no  law  in  force  against  such  trade.  It  is  therefore 
our  will  and  pleasure,  that  you  signify  to  our  subjects 
under  your  government,  the  purport  and  intent  of  the 
abovesaid  two  articles,  and  that  you  take  particular  care 
that  the  same  be  punctually  observed  and  put  in  execu- 
tion, and  that  no  illegal  trade  be  carried  on  between  our 
subjects  in  our  said 

under  your  government,  and  the  French  settlements  in 
America,  by  any  of  our  ships  of  war  attending 

,  or  by  any  other  British  ships ;  as  like- 
wise that  none  of  the  French  subjects  be  allowed  to  trade 
from  their  said  settlements  to 


OF    THE    LAW    OP    NATIONS.  627 

We  have  also  considered  the  anne-xed  extract  of  the  5th 
and  6th  articles  of  the  said  treaty  of  peace  and  neutral- 
ity, referred  to  by  the  said  instructions,  and  conceive 
that  it  was  the  intent  of  those  articles  to  give  power  to 
the  King  of  Great  Britain,  and  the  Most  Christian  King, 
reciprocally  to  seize  and  confiscate  the  ships  and  cargoes 
belonging  to  the  subjects  of  each  other,  which  should 
carry  on  a  trade  contrary  to  the  said  articles,  and,  con- 
sequently, that  ships  belonging  to  the  subjects  of  France, 
with  their  ladings,  that  shall  be  found  trading  in  any  of 
the  British  plantations  in  breach  of  those  articles,  will 
be  liable  to  be  seized  and  condemned  in  some  of  his  Maj- 
esty's courts  within  such  plantation  for  that  cause  ;  and 
that,  on  the  other  hand,  ships  and  their  cargoes  belong- 
ing to  British  subjects,  who  shall  be  found  trading  in 
any  of  the  French  plantations  in  breach  of  the  said  ar- 
ticles, will,  in  like  manner,  be  subject  to  seizure  and  con- 
fiscation, within  such  French  plantation  ;  but  we  appre- 
hend, that  it  was  not  the  intent  of  this  treaty  to  provide 
that  either  of  the  contracting  powers  should  seize  and 
confiscate  the  ships  or  goods  of  their  own  subjects,  for 
contravening  the  said  articles  ;  and  if  such  intention  had 
appeared,  we  are  humbly  of  opinion,  that  it  could  not 
have  had  its  effect  with  respect  to  his  Majesty's  sub- 
jects, unless  the  said  articles  had  been  confirmed,  either 
by  the  act  of  Parliament  of  Great  Britain,  or  by  acts  of 
assembly  within  the  respective  plantations, 

As  to  the  above  mentioned  instruction,  there  appears 
to  us  nothing  illegal  in  the  terms  of  it ;  but  considering 
the  distinction  arising  upon  the  said  two  articles  of  the 
treaty,  which  we  have  already  stated,  we  submit  it  to 
your  Lordships'  consideration,  whether  it  may  not  be 
expressed  more  explicitly  and  particularly,  in  order  to 


628  OPINIONS    OF    EMINENT    LAWYERS. 

prevent  mistakes  in  carrying  the  same  into  execution  m 
the  several  cases  that  may  happen. 

June  3,  1728.  P.  YORKE. 

C.    TALBOT. 

(10.)  Ihe  opinion  of  the  Attorney  and  Solicitor-Gen- 
eral, Ryder,  and  Murray,  on  the  same  subject. 

To  the  Right  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  desire,  signified  to  us 
by  Mr.  Pownall,  in  his  letter  of  the  30th  day  of  March 
last,  inclosing  a  copy  of  an  instruction  given  to  the  gov- 
ernors of  his  Majesty's  colonies  and  plantations  in  Amer- 
ica, relative  to  the  5th  and  6th  articles  of  the  treaty  of 
peace  and  neutrality  in  America,  concluded  between 
England  and  France,  the  16th  day  of  November,  1686, 
desiring  our  opinion  whether  the  said  treaty  is  now  of 
any  force  or  validity  :  we  have  taken  the  said  articles 
of  that  treaty  into  our  consideration,  and  are  of  opinion 
that  the  said  treaty  is  now  in  force. 

April  7,  1753.  D.  RYDER. 

W.   MURRAY. 

(11.)  Ihe  opinion  of  the  Attorney  and  Solicitor,  Nor- 
ton and  De  Grey,  on  the  same  subject. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships  ;. 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Pownall's  letter  of  the  28th  of  January 
last,  intimating  that  your  Lordships  had  under  your  con- 
sideration some  papers  relative  to  a  negociation  with  the 


OF    THE    LAW    OP    NATIONS.  629 

court  of  France,  respecting  the  freedom  of  navigation  in 
the  American  seas,  in  which  some  doubts  have  occurred 
as  to  the  existence  or  non-existence  of  the  treaty  con-r 
eluded  between  the  two  crowns  on  the  16th  of  Novem- 
ber, 1686,  commonly  called  the  treaty  of  neutrality,  and 
that  it  is  your  Lordships'  pleasure  we  should  take  the 
said  treaty  into  our  consideration,  and  report  our  opin^ 
ion  whether  the  same  is  or  is  not  now  in  force :  we  have 
taken  the  said  treaty  and  Mr.  Pownall's  letter  into  our 
consideration,  and  are  humbly  of  opinion  that  the  same 
is  not  now  in  force. 

FLR.  NORTON. 
WM.  DE  GREY. 
Lincoln's  Inn,  Feb.  12,  1765. 

(12.)  ITiQ  opinion  of  the  Advocate-General,  Sir  James 
Jlfarriot,  on  the  same  subject. 

Sir; 

In  pursuance  of  your  letter,  by  order  of  the  Lords 
Commissioners  of  trade  and  plantations,  I  have  taken 
into  consideration  the  question  with  which  I  am  honor- 
ed, whether  the  treaty  of  1686,  commonly  called  the 
treaty  of  neutrality,  is  a  subsisting  treaty  1  I  have  con- 
sidered the  same  with  great  attention,  and  it  does  not 
appear  to  me  that  the  treaty  of  1686  is  not  a  subsisting 
treaty,  but  that  it  inuy  be  insisted  upon  to  be  so,  upon 
the  ground  of  implication  of  words,  and  the  equitable  in- 
terpretation of  the  subsequent  treaties  which  have  been 
formally  renewed,  by  the  treaties  of  Aix  la  Chapelle, 
and  the  last  definitive  treaty  of  Versailles  ;  and  as  the 
treaty  of  1686  is  supported  by  the  general  nature  of 
such  conventions,  and  by  acts  of  acknowledgment  of 
the  contracting  parties  in  the  intermediate  periods,  and, 


630  OPINIONS    OP    EMINENT    LAWYERS. 

farther,  that  the  treaty  of  1686  having  not  been  special- 
ly abrogated,  what  is  not  abrogated  may  be  understood 
to  subsist. 

I  observe,  that  the  treaty  of  1686  is  a  subsisting  trea- 
ty, not  otherwise  than  it  can  be  maintained  upon  some 
one  or  other  of  these  reasons,  because,  on  the  other 
hand,  it  appears  that  •none  of  the  subsequent  treaties 
have  nominally  revived  it. 

These  are  the  general  outlines  of  the  probable  argu- 
ments for  the  validity  of  the  treaty  in  question,  and  the 
objection  against  it,  all  which  I  shall  submit  in  the  ful- 
lest manner  I  am  able,  for  their  Lordships'  consideration ; 
because  the  admitting  that  the  state  of  commerce  with 
France,  in  America,  remains  unsettled  by  the  last  gen- 
eral treaty,  leads,  as  I  humbly  apprehend,  to  large  con^ 
sequences. 

On  the  general  view  of  the  question,  I  conceive,  that 
treaties  being  in  their  nature  compacts  superseding  the 
common  usage,,  which  is,  strictly  speaking,  the  law  of  na->. 
tions,  by  particular  stipulations,  are  to  be  argued  upon 
the  footing  of  all  obligations  which  arise  from  contract, 
expressed  or  tacit,  whether  quasi  ex  contracts,  or  neces-? 
sarily  implied  by  general  words  of  comprehension ;  and 
the  principles  of  the  civil  law,  de  oUigationibus,  which 
is  the  law  admitted  by  all  nations  in  Europe,  by  most  in 
their  domestic,  and  by  all  in  national  questions,  must  be 
allowed  to  arbitrate  in  deciding  the  validity  and  exist- 
ence of  a  public  treaty,  by  the  same  rules  and  reason- 
ings as  when  applied  to  any  other  contract  of  private 
life.  I  imagine,  therefore,  that  the  civilians  of  France 
will  admit  the  following  principles  to  be  just:  "  that  the 
ground  on  which  the  force  of  every  contract  relies,  is  a 
mutual,  apparent  consent,  and  an  equitable  object  in  con- 


OF    THE    LAW    OP    NATIONS.  631 


tracting."  Words  or  characters  are  merely  used  to 
vjey,  by  marks  or  sounds,  the  ideas  of  consent,  and  to 
preserve  the  memory  of  compacts  ;  now  the  end  thus  be* 
ing  principally  to  be  considered,  and  the  means  being 
regarded  only  as  declarative  of  the  end,  if  by  any  other 
means  than  by  strict  words  a  contract  is  implied,  it  is 
undoubtedly  valid  whenever  there  appears,  from  any  acts 
or  reasonable  interpretation  of  signs,  an  acknowledged 
consent  and  equitable  foundation  of  contracting,  these 
circumstances  making  the  very  substance  of  a  contract  ; 
the  instances  in  the  Roman  law  are  many  and  obvious, 
that  obligations  may  be  entered  into  by  implication. 
The  consequence  I  mean  to  draw  is,  that  if  obligations 
can  be  entered  into  by  implication  and  so  commenced, 
they  maybe  revived  by  implication,  which  is  a  stronger 
case  :  they  may  be  revived  by  implication,  a  fortiori, 
with  more  facility  than  they  can  be  commenced  ;  be-« 
cause,  in  the  case  of  first  contracting,  the  contract  is 
stricti  juris,  and  res  integra  /  but  in  the  case  of  a  revival, 
there  is  a  basis  and  better  ground  of  implication  }  for* 
the  general  sense  of  the  contract  once  being  declared  by 
facts  corresponding  to  it,  is  perfectly  understood,  so  that 
it  wants  fewer  words  to  revive  a  convention,  than  first 
to  contract  it.  A  contract,  also,  revives  from  the  very 
nature  of  the  cause  ceasing  to  operate  which  had  sus- 
pended the  force  of  the  convention,  and  more  especially 
if  the  revival  is  confirmed  by  any  effectual  acts  of  a  suf- 
ficient continuance  in  time  to  mark  publicity  and  con- 
sent of  the  contracting  parties  ;  and,  above  all,  if  the  ob- 
jects of  good  faith  are  concerned  in  the  revival.  Quid 
refert,  said  the  great  Roman  lawyers,  an  verbis  popular 
voluntatem  suam  declare^  an  rebus  et  factis?  And  when 
they  distinguished  between  obligations  and  stipulations, 


632  OPINIONS    OP    EMINENT    LAWYERS. 

they  strongly  laid  down  the  doctrine  of  obligatory  im- 
plications. JVeque  scriptura  omnimodo  opus  est,  ut  $ub>- 
stantiam  capiat  obligatio,  scd sufficit  consentirc.  Alter  al- 
terc  obligatur  in  cd  quod  alter  am  alteri  ex  lono  et  cequo 
prcEStare  oportet.  This  reasoning,  applied  to  the  validity 
of  the  treaty  of  1686,  acquires  fresh  force,  by  consider- 
ing the  nature  of  a  war  under  the  circumstances  of  the 
several  powers  of  Europe,  and  the  comprehensive  stipu- 
lations of  the  definitive  treaties  subsequent  to  it,  and 
bearing  relation  to  those  circumstances. 

A  stress  is  laid  upon  this  point ;  for  in  debating  any 
question  upon  treaties  arising  between  nation  and  na- 
tion in  the  age  we  live  in,  it  is  necessary  to  keep  in  view 
the  general  state  and  condition  of  the  contracting  pow- 
ers, from  whence  the  arguments  of  public  law  can  only 
be  drawn  with  any  just  decision. 

Without  our  revolving,  therefore,  for  examples,  the 
ancient  history  of  nations  in  a  less  civilized  state  of 
mankind-,  we  may  determine  upon  points  of  public  law 
in  a  different  way  than  that  in  which  Grotius,  Puffen- 
dorf,  and  other  elaborate  writers  of  Holland  and  Ger- 
many have  done  it,  amassing  their  proofs  from  the 
Greek  and  Roman  historians,  orators,  and  poets,  from 
tragedians,  comic  authors,  and  fathers  of  the  church,  as 
equal  authorities ;  but  the  decisions  of  public  law  are, 
and  must  be  different,  in  different  ages  of  mankind.  The 
system  of  nations  concerning  their  reciprocal  rights, 
whether  by  usage  or  treaty,  depends  upon  their  man- 
ners. When  I  speak  of  the  present  age,  I  mean  an  in- 
terval of  time  from  the  treaty  of  Westphalia  down  to 
the  last  definitive  treaty  of  Versailles,  which  may  be 
called  truly  the  age  of  negociation,  of  which  kind  of  in- 
tercourse and  connections  the  Greeks  and  Romans,  con- 


OF   THE    LAW    OF    NATIONS.  633 

fending  always  with  barbarous  nations,  had  very  partial 
notions  ;  drawn  however,  from,  and  adapted  to,  the  con- 
dition of  their  rivals,  and  the  rest  of  mankind,  in  those 
ages'.  In  the  present  age,  as  war  is  commenced  on  dif- 
ferent principles  from  the  wars  of  antiquity,  so  it  ends 
with  different  principles;  in  both,  more  to  the  honor  of 
humanity. 

The  public  law  of  Europe  abhors  the  sanguinary  ob- 
ject of  ancient  wars,  universal  slavery  or  extirpation. — 
Every  war,  in  these  times,  is  considered  but  as  an  ap- 
peal to  the  rest  of  the  powers  of  Europe,  and  is  but  a 
temporary  exertion  of  force  to  decide  a  point  of  interest 
which  no  human  tribunal  can  determine  :  thus  it  is,  in 
its  nature,  but  a  suspense  of  the  other  rights,  not  in  con- 
test, which  existed  between-  the  belligerent  powers  reci- 
procally before  the  war :  when  we  reason,  therefore,  that 
a  war  being  ended,  the  public  reciprocal  rights  and  obli- 
gations, not  specially  abrogated,  but  suspended,  emerge, 
and  acquire  their  former  vigor  and  activity,  the  reason- 
ing of  it  is  just  ]  is  so;  because  it  is  consistent  with  the 
relations,  and  arises  out  of  the  nature  of  things.  We 
need  not  urge  the  necessity  of  particular  stipulations 
to  revive  such  obligations  :  it  is  the  very  essence  and 
necessary  idea  of  reconciliation,  implied  of  course,  if 
not  declared,  in  every  definitive  treaty  of  pacification, 
that  the  commercial  and  friendly  intercourse  of  the 
Contracting  powers  is  replaced  in  its  former  state ;  but 
it  is  usual  in  all  definitive  treaties,  that  all  the  acts  of 
hostility  which  have  been  committed  on  either  side  to 
suspend  the  intercourse  of  the  contracting  parties,  should 
be  declared  to  be  forgot,  and  to  be  considered  comme 
non  avenus,  which,  when  expressed  in  terms,  can  mean 

nothing,  or  it  must  mean  this,  that  no  consequence  shall 
81 


634  OPINIONS    OF    EMINENT    LAWYERS. 

be  drawn  hereafter  from  the  past  con  test  to  the  prejudices 
of  any  reciprocal  rights  existing,  before  not  expressedly 
deviated  from  by  some  new  stipulation. 

On  this  general  ground  it  is,  I  mean  a  restitution  of 
reciprocal  rights  in  integrum  after  a  war,  implied  as  well 
as  expressed,  that  the  jus  postliminii,  which  never  has 
been  called  in  question  in  any  period,  reverts  to  creditors 
relative  to  the  debts  due  to  them  from  the  subjects  of 
the  belligerent  state,  contracted  before  the  war,  during 
which,  although  the  right  of  the  creditor  to  recover  the 
same  is  suspended,  yet  it  is  not  annihilated  by  any  con- 
fiscation, but  he  may  pursue  and  obtain  his  demand  after 
the  war.  Now  the  same  restitution  in  integrum,  of  na- 
tional rights  and  obligations  is  as  reasonable  and  just 
between  the  respective  governments,  as  it  is  universally 
allowed  to  exist  between  their  subjects,  one  with  anoth- 
er; for  the  revival  of  all  obligations,  public  as  well  as 
private,  stands  undoubtedly  upon  the  same  analogy  of 
justice. 

But  there  is  still  a  more  striking  instance  of  all  obli- 
gations not  entirely  sinking  in  a  war,  when  the  creditors 
of  one  belligerent  party  are  the  subjects  of  the  other 
hostile  government,  and  yet  preserve  the  right  to  their 
property,  by  the  law  of  nations,  flagrant^  belfr,  without 
danger  of  confiscation.  Such  is  the  force  of  those  ex- 
alted principles  of  public  law,  which,  in  these  happier 
ages  of  human  society,  restore  their  proper  empire  over 
the  minds  of  men  to  good  sense  and  good  faith,  with  a 
force  superior  to  the  passions  or  prejudices  of  nations  long 
accustomed  to  be  rivals  ;  and  such  I  c.onceive  to  be  the 
law  of  Europe  in  its  present  state,  which,  whenever 
these  doctrines,  founded  in  reason  and  humanity,  shall 
cease  to  prevail,  will  fall  back  into  all  the  gloom  of  a 
barbarous  condition  of  ignorance  and  despotism. 


OF    THE    LAW    OF    NATIONS.  635 

The  war  between  England  and  France  which  follow- 
ed the  revolution,  suspended  the  commercial  treaty  of 
1686,  called  the  treaty  of  neutrality.  The  treaty  of 
peace  concluded  at  Ryswic,1697,takes  no  notice  of  it  nom- 
inally, but  revives  it,  not  only  by  the  general  quality  of 
a  treaty,  putting  an  end  to  the  war,  but  Jby  the  strongest 
terms  of  a  general  comprehension,  restoring  the  com- 
merce of  the  two  nations,  reciprocally,  to  the  state  in 
which  it  existed  before  the  war. 

The  5th  article  is,  liber  sit  usus  navigatlonis  et  com* 
mercii  inter  suMitos  utriusque  dominationis,  regumprout 
jam  olim  ercut  temporepacis  et  ante  nuperrimi  belli  denun- 
ciationcm. 

The  commerce  of  the  two  nations  was  declared  free, 
just  in  the  same  degree  as  it  was  free  before  the  war, 
and  of  course  prohibited-  in  the  same  degree  ;  so  long  as, 
in  our  reasoning,  every  affirmation  carries  with  it  the 
necessary  negation  of  its  opposite. 

Thus  was  the  treaty  of  1686  revived,  by  implication, 
in  the  terms  of  the  treaty  of  Ryswic  ;  but  it  was  as 
strongly  revived  by  reciprocal  acts  of  acknowledgment ; 
and  both  nations  adhered  to  the  treaty  of  1686  till  the 
war  of  Queen  Anne.  By  that  war  the  vigor  of  the  treaty 
of  1686  was  again  suspended  till  the  general  peace  of 
Utrecht,  and  revived  again  in  the  same  manner  as  before. 

The  7th  article  is,  la  navigation  et  le  commerce  seront 
libres,  entre  les  sujcts  de  leurs  majestes,  de  meme  qdils 
Font  toitjours  etc  en  terns  de  paix,  et  avant  la  declaration 
de  lei  guerre. 

The  separate  t  treaty  of  commerce  between  Great 
Britain  and  France  at  the  peace  of  Utrecht  was  confin- 
ed to  Europe,  which  shows  that  both  parties  considered 
the  treaty  of  1686  as  reciprocally  subsisting  in  Ameri- 


636  OPINIONS    OP    EMINENT    LAWYERS. 

ca,  for  otherwise  they  certainly  would  have  provided  for 
it  in  a  treaty  the  most  comprehensive  in  history,  and 
the  most  definitive  in  developing  and  fixing  all  the  in- 
terests of  the  belligerent  parties,  except  the  last,  since 
the  treaty  of  Westphalia. 

It  must  be  judged  that  both  France  and  England  then 
considered,  the  treaty  of  1686  as  a  subsisting  treaty,  not 
only  for  the  reason  I  have  already  given,  bu^  for  others. 
The  6th  article  of  the  general  treaty  of  Utrecht  refers 
the  case  of  mutual  confiscation  of  ships,  in  America, 
which  had  been  made  in  time  of  peace  (most  probably 
on  the  ground  of  the  treaty  of  1686}  to  commissaries : 
it  must  mean,  or  it  could  mean  nothing,  that  the  decis- 
ion of  these  commissaries  should  be  made  on  the  basis 
of  some  treaty,  and  no  other  treaty  could  possibly  be, 
in  the  contemplation  of  the  contracting  parties,,  but  th,e 
treaty  of  commerce  and  neutrality  of  1686,  subsisting 
at  the  time  of  the  capture,  and  the  6th  article  of  it  re- 
lative to  confiscation  of  sbips  and  cargoes  in  America, 
farther,  the  validity  of  the  treaty  in  question  appears 
plainly  acknowledged,  in  fact,  by  no  step  being  taken 
in  contravention  to  it  by  France  and  England  for  so 
long  a  period  as  from  1713  to  1727.  It  was  again  ac- 
know],e,dged  more  particularly  in  about  1738,  when  the 
Drench  court  repealed  the  edict  which  had  been  made 
in  contravention  to  the  treaty  in  question,  on  the  warm 
remonstrances  of  the  British  government. 

The  treaty  of  1686  remained  thus  considered,  by 
both  nations,  and  by  all  Europe,  as  a  subsisting  treaty 
till  the  war  of  1744.  The  treaty  of  Aix  la  Chapelle 
took  no  notice  of  this  treaty,  nominally,  but  renewed 
all  subsisting  treaties.  The  treaty  of  1686  was  acknowl- 
edged, in  fact,  by  both  nations  acting  in  consequence  of 
it  till  the  war  of  1756. 


OF    THE    LAW    OF    NATIONS.  637 

The  last  definitive  treaty  of  peace,  like  that  of  Aix 
la  Chapelle,  does  not  nominally  revive  the  particular 
treaty  of  1686  ;  but  having  first,  nominally,  revived  the 
great  general  treaties,  in  which  the  interests  of  the 
other  powers  of  Europe  have  been  settled  at  different 
periods,  it  goes  on  to  renew  all  other  treaties  which 
subsisted  between  the  contracting  parties  before  the 
war  :  thus  a  distinction  clearly  appears,  that  some  treaty 
is  understood  to  subsist,  which  is  not  named,  and  which 
is  of  a  different  nature  from  the  vtreaties  specified;  and 
that  the  treaty  understood  is  relative  only  to  the  in- 
terests of  the  two  contracting  parties,  separate  from  the 
rest  of  their  allies  and  confederates,  who  were  parties 
to  the  treaties  which  were  revived  by  name ;  so  that 
there  is  a  very  reasonable  ground  of  implication,  from 
the  terms  of  the  reviving  stipulations,  that  the  treaty 
of  1686  was  meant  to  be  revived  as  a  subsisting  treaty 
by  the  last  definitive  treaty.  But  upon  the  general  ana- 
logy, it  is  a  much  stronger  case  that  a  commercial  treaty 
should  subsist  by  implication,  than  that  a  subsidiary 
treaty  of  alliance,  which  I  take  to  be  out  of  doubt,  should 
subsist  by  implication,  though  made  for  a  limited  time, 
as  completely  as  by  signing,  sealing,  and  formal  ratifica- 
tion, provided  the  parties  do  any  act  declarative  of  their 
consent  to  the  renewal,  which  .as  I  observed  before,  is 
the  grounclon  which  all  contracts  are  supported.  If  one 
party  advances  the  subsidy  for  another  year  or  more, 
and  the  other  accepts  it,  it  is,  undoubtedly,  a  subsisting 
treaty,  notwithstanding  that  the  term  limited  is  expired. 
Now,  in  the  case  of  the  validity  of  a  general  treaty  of 
commerce,  the  implication  of  validity  is  stronger,  because 
there  being  no  limitation  of  time,  nothing  expires ;  but 
there  is  only  a  suspense  of  the  -obligation,  during  the  in- 
terval of  a  war. 


638  OPINIONS    OF    EMINENT    LAWYERS, 

The  general  stipulations  of  revival  in  the  definitive 
treaties  deserve  particular  attention,  because  under  the 
terms,  "renewing  all  subsisting  treaties,"  it  is  plain,  that 
they  do  not  subsist,  because  they  are  renewed  ;  but  they 
are  renewed  in  words,  but  subsist  because  the  war  is  at 
an  end.  This  usual  stipulation  would  be  nugatory,  if  it 
revived  nothing  by  implication  of  this  expression  ;  and 
it  would  he  redundant,  if  it  did  not  attempt  tp  show  that 
it  did  not  mean  to  abrogate  specially,  or  by  any  implU 
cation,  but  on  the  contrary  to  give  the  utmost  force  to 
that  which  was  already  understoood  to  subsist  gener-. 
ally. 

Upon  the  whole  matter,  for  some  one  or  all  of  these 
reasons,  or  for  better,  which  may  occur  to  the  contem- 
plation of  their  Lordships,  and  the  wisdom  of  his  Majes^ 
ty's  administration,  under  the  present  circumstances  of 
the  British  and  French  colonies  in  America,  I  have  the 
honor  to  submit  that  the  treaty  of  1686  may  be  insisted 
upon,  as  a  subsisting  treaty,  not  only  because  it  is  re- 
vived by  a  strong  implication  of  words  and  facts,  but  for 
that  it  may  be  understood  to  subsist  because  it  never 
was  abrogated. 

JAMES  MARRIOTT,  Advocate-General. 
Feb.  15,  1765. 

If  the  King's  advocate's  last  report  on  the  treaty  of 
1686  is  not  circulated,  he  begs  the  favor  of  Mr.  Pownall 
to  alter  the  passage,  page  8,  beginning  at  the  words> 
"  But  there  is  still  a  more  striking  instance,"  &c.  &c. 

Instead  of  it,  read  as  follows,  "But  there  is  still  a 
more  striking  instance  of  all  obligations  not  entirely 
sinking  in  a  war,  when  the  subjects  of  one  government 
are  the  public  creditors  of  the  other,  and  yet  these  alien 
enemies  preserve  the  right  to  their  property  in  the  pub- 


639 

lie  funds  of  the  hostile  government,  by  the  law  of  na- 
tions, in  the  midst  of  the  war,  without  confiscation." 
Doctors'  Commons,  Feb.  21,  1765. 

(13.)  The  opinion  of  the  Attorney '^General)  Pratt,  on  the 
question  whether  Guadaloupe  became,  in  1759,  a  British 
island. 

By  the  book  of  rates,  annexed  to  the  act  of  tonnage 
and  poundage,  12  Car.  2,  C.  4,  and  several  subsequent 
acts  of  parliament,  the  duties  payable  in  Great  Britain 
by  British  subjects  upon  the  importation  of  goods,  being 
the  produce  of  the  French  plantations,  are  considerably 
higher  than  for  the  like  goods  if  produced  in  the  British 
plantations; 

Case. — The  articles  of  capitulation  entered  into  on  be- 
.  half  of  his  Majesty  with  the  inhabitants  of  Guadaloupe 
are  inclosed :  the  seventh  article,  by  the  tenor  of  it, 
seems  intended  only  to  operate  upon  such  duties  as  are 
payable  upon  the  island,  besides  which  the  sixteenth 
and  twenty-first  seem  to  be  the  only  articles  relative  ta 
trade, 

JV1  B. — In  the  year  1626,  the  French  and  English,^ 
by  consent,  took  a  joint  possession  of  the  island  of  St.- 
Christopher's  in  America ;  about  the  time  of  the  revolu- 
tion the  French  drove  out  the  English.  In  the  year 
1690,  or  thereabouts,  the  English  recovered  the  island 
and  had  entire  possession,  which  they  continued  until 
it  was  ceded  to  them  by  the  peace  of  Utrecht  in  1712. 

It  appears  by  the  book  of  rates  at  the  custom-house, 
that  sugar  imported  into  Great  Britain  from  St.  Christo- 
pher's, after  the  year  1690,  and  before  the  year  1712, 
paid  the  same  duty  as  sugar  imported  from  the  British 
plantations. 


640  OPINIONS    OF    EMINENT    LAWYERS. 

Quaere. — Is  the  island  of  Guadrloupe  to  be  considered 
as  a  plantation  or  territory,  to  his  Majesty  belonging,  or 
in  his  possession,  within  the  meaning  of  the  act  of  nav- 
igation, and  the  other  laws  before  recited ;  and  is,  or  is 
riot,  the  produce  thereof,  when  imported  from  thence  in- 
to Great  Britain,  to  be  charged  with  the  same  duty  as 
if  it  was  imported  from  his  Majesty's  British  planta- 
tions ? 

I  am  of  opinion,  from  the  best  consideration  I  carl 
give  this  Case,  that  Guadaloupe  must  be  considered  as 
one  of  the  British  plantations;  for  notwithstanding  the 
advantageous  terms  that  are  granted  to  the  inhabitants, 
the  island  is  clearly  in  his  Majesty's  possession.  The 
inhabitants  are  disarmed  and  in  a  state  of  subjection  to 
his  Majesty  and  his  troops  ;  all  new  commissions  are  to 
be  taken  under  his  Majesty,  and  all  acts  of  justice  are  to 
run  in  his  name  ;  he  is  in  actual  possession  of  all  the 
public  revenues,  and  all  the  trade  of  the  island  has 
changed  its  course,  passing  now  in  English  bottoms  only 
to  Great  Britain ;  all  which  particulars  being  considered, 
I  must  conclude  that  this  island  is  now  a  plantation  be- 
longing to  his  Majesty,  and  in  his  possession,  in  right  of 
the  Crown  of  England ;  that  it  is  an  English  and  a  Brit- 
ish plantation,  within  the  meaning  and  intent  of  the  act 
as  referred  to  :  the  great  objection  to  this  opinion  arises 
from  the  condition  of  the  present  inhabitants,  who  enjoy 
privileges,  under  the  articles,  hardly  compatible  with 
the  state  of  subjects ;  but  that  has  no  great  weight,  if  it 
be  considered  that  these  are  personal  privileges  confined 
only  to  the  present  inhabitants,  who  are  restrained  from 
alienating  to  any  but  the  King's  subjects,  and  the  capit- 
ulation is  made  not  with  the  French  king,  but  only  with 
the  inhabitants.  The  right  of  sovereignty,  therefore,  is 


OF    THE    LAW    OF    NATIONS.  641 

wholly  changed,  and  the  whole  island  is  the  King's  ac- 
quisition by  conquest.  If  any  inhabitants  should  die 
without  heirs,  his  lands  would  escheat  to  the  King.  If 
any  of  them  should  levy  wars^  or  plot  the  King's  death, 
they  would  be  guilty  of  high  treason,  and  to  illustrate 
this  further,  if  the  inhabitants  should  agree  to  sell  all 
their  possessions  to  Englishmen,  the  island  would  imme- 
diately, without  any  further  treaty  or  capitulation,  be* 
come  wholly  English.  The  inhabitants  plainly  under- 
stood themselves  transferred  to  his  Majesty's  dominions, 
and  therefore  have  stipulated  for  the  like  privileges  in 
trade  as  are  allowed  to  the  rest  of  his  Majesty's  sub- 
jects; and  this  is  granted,  with  a  proviso  that  they  com- 
ply with  the  acts  of  trade.  In  a  word,  the  condition  of 
subjects  may  be  better  or  worse  in  different  parts ;  but 
here  the  question  is  about  sovereignty,  and  has  nothing 
to  do  with  the  privileges  his  Majesty  has  been  pleased 
to  grant  the  natives.  I  have  had  no  opportunity  to  con- 
fer with  Mr.  Solicitor-General  upon  this  point ;  and 
therefore,  if  we  differ,  I  should  wish  to  have  a  meeting 
with  him,  because  this  is  a  question  of  great  consequence 
and  concerns  a  multitude  of  people. 

August  7,  1759.  C.  PRATT. 

(14.)  The  opinion  of  the  Solicitor-General,  Ybrke,  on 
the  same  legal  topics. 

I  am  of  opinion,  that  Guadaloupe  is  to  be  considered 
as  a  plantation  or  territory  belonging  to  the  King  by 
conquest ;  and  1  am  also  of  opinion,  that,  provided  the 
requisites  of  the  act  of  navigation,  and  the  subsequent 
laws  relative  to  the  same  subject  matter  are  complied 
with,  the  produce  ought  to  be  charged  with  the  same 

duties  as  if  imported  from  plantations  originally  British. 

82 


642  OPINIONS    OP    EMINENT    LAWYERS. 

The  act  of  navigation  refers  not  only  to  the  plantations 
and  territories  belonging  to,  or  in  the  possession  of,  the 
crown  at  that  time,  but  to  future  acquisitions ;  and  the 
later  acts,  which  relax  or  vary  in  some  respects  the  pro- 
visions of  it,  are  equally  extensive.  The  instance  of  the 
rule  observed  at  the  custom-house  as  to  sugars  imported 
from  St.  Christopher's  between  1690  and  1712  (without 
distinguishing  between  the  ancient  French  and  English 
divisions  of  the  island)  is  in  point.  As  to  the  articles 
of  capitulation  with  the  inhabitants,  I  think  that  ques- 
tion is  not  affected  by  them :  the  King  has  a  right  by 
conquest,  though  it  is  accompanied  witj^  terms.  The 
seventh  article  plainly  respects  duties  payable  in  Gua- 
daloupe  itself,  either  as  a  beneficial  revenue  to  be  trans- 
mitted to  Europe  on  the  King's  account,  or  to  be  em- 
ployed in  carrying  on  the  expenses  of  government  in 
the  place.  And  the  sixteenth  and  twenty-first  articles 
(as  allowed  by  General  Barrington  and  Commodore 
Moore)  only  stipulate  for  the  inhabitants  those  privile- 
ges in  trade,  according  to  the  laws  of  England,  in  which 
his  Majesty,  without  any  such  particular  stipulationr 
might  lawfully  indulge  them,  from  the  moment  that  they 
owed  an  allegiance  as  his  subjects,  residents  in  a  plan- 
tation belonging  to  his  crown. 

If  there  are  any  objections  against  putting  this  con- 
quest on  the  same  foot,  as  to  the  duties  in  question,  with 
other  plantations  belonging  to  the  King,  or  in  his  Maj- 
esty's possession,  they  must  arise  from  some  other  arti- 
cles and  expressions  in  the  capitulation,  tending  to  qual- 
ify and  render  incomplete  the  right  of  conquest. 

But,  first,  it  seems  to  me  immaterial,  that  no  actual 
oath  of  fealty  or  allegiance  to  the  King  is  stipulated,  be- 
cause the  conquest  binds  the  inhabitants  to  such  alle- 


OP    THE    LAW    OF    NATIONS.  643 

glance  by  the  law  ,of  nations.  Second,  Where  the  in- 
habitants stipulate  a  neutrality,  in  the  fourth  article,  it 
is  merely  for  the  single  purpose  of  not  being  compelled 
to  bear  arms.  Third,  Expressions  in  the  fifth,  seventh, 
and  eleventh  articles,  where  both  the  English  officers, 
and  French  inhabitants,  seem  to  refer  to  some  act  of 
cession  (by  way  of  perfecting  the  King's  right)  which 
may  possibly  be  made  by  France  to  his  Majesty  at  a  fu- 
ture treaty  of  peace,  are  mere  inaccuracies,  and  import 
no  more  in  the  view  of  the  parties  than  saying,  in  case 
the  island  shall  be  retained  by  his  Britannic  Majesty, 
and  not  restored  to  the  French  King,  then,  &c.  &c.  What 
puts  this  matter  out  of  all  doubt,  is,  that  article  twelve, 
as  perned  by  the  inhabitants  themselves,  supposed  that 
Guadaloupe  may  be  the  object  of  an  exchange  between 
Great  Britain  and  France,  which  it  could  not  be  if  it 
were  not  an  absolute  conquest  made  by  the  crown  of 
Great  Britain,  capable  of  being  exchanged  for  some  oth- 
er conquest  made  by  the  crown  of  France.  And  in  the 
sixth  article  of  the  capitulation  with  the  garrison,  as 
prepared  by  the  French  officers,  the  future  possible  ces- 
sion of  the  island,  referred  to  at  the  making  of  a  peace, 
is  a  cession  to  be  made  by  Great  Britain  to  France  ; 
which,  ifi  the  very  terras,  supposes  an  absolute  conquest. 
Upon  the  whole,  I  am  of  opinion  that  the  island  of  Gua- 
daloupe is  to  be  considered  as  "a  plantation  belonging  to 
the  King,  and  in  his  possession,  within  the  meaning  of 
the  laws  stated ;  and  that  the  duties  ought  to  be  paid  in 
England  as  on  commodities  imported  from  British  plan- 
tations. 

August  13,  1759.  C.  YORKE. 

(15.)  The  opinion  of  the  Attorney  and  Solicitor-General, 


644  OPINIONS    OP    EMINENT    LAWYERS. 

Trevor  and  Hawles,  how  far  Scotchmen  were  aliens,  and 
Tioiv  a  ^Lieutenant-Governor  could  be  tried  /or  misdemean- 
or. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

In  answer  to  your  Lordships'  qu(Briest  signified  to  us 
by  Mr.  Popple,  the  30th  of  April  last,  relating  to  offen- 
ces committed  by  Captain  Norton,  and  against  the  act 
for  regulating  abuses  in  the  plantation  trade  ; 

First,  We  are  of  opinion,  that  for  such  offence  or  wil- 
ful neglect,  the  Lieutenant-Governor,  Captain  Norton, 
may  be  indicted  and  tried  in  the  court  of  king's  bench, 
by  virtue  of  the  act  for  punishing  governors  of  planta- 
tions for  offences  committed  by  them  in  the  plantations. 
But  we  doubt  whether  he  will  incur  the  penalty  of 
£.1000  by  the  act  made  the  seventh  and  eighth  of  the 
King,  for  regulating  abuses  in  the  plantation  trade ;  for 
the  words  of  the  act  extend  only  to  governors  and  com- 
manders in  chief,  and  is  given  only  for  the  offence  of  not 
taking  the  oaths  or  putting  the  acts  in  execution ;  but  he 
will  be  finable  at  the  discretion  of  the  court ; 

Secondly,  We  think  a  foreigner  enclenized  is  qualified 
to  be  master  of  a  ship  trading  to  the  plantations,  unless 
there  be  a  provision  in  the  letters  patents  of  denization, 
that  such  denization  shall  not  enable  him  to  be  master 
of  a  ship,  which  is  usually  inserted  for  that  purpose  ;  but 
hath  been  omitted  in  some  denizations  of  French  pro- 
testants  since  the  reign  of  his  present  Majesty,  by  order 
of  council ; 

Thirdly,  We  are  of  opinion,  that  a  Scotchman  is  to  be 
accounted  as  an  Englishman  within  the  act,  every  Scotch- 
man being  a  natural  born  subject. 

June  4,  1701,  THO.  TREVOR. 

Jo.  HAWLES. 


OF    THE    LAW    OP    NATIONS.  645 

(16.)  Ihe  opinion  of  the  Attorney-General,  Northey,on 
'the  question  of  alienage,  and  trading  with  her  Majesty's 
enemies. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 

On  consideration  of  the  case  of  Manasses  Gillingham, 
who  (being  a  natural  born  subject  of  her  Majesty,  but  a 
settled  inhabitant  in  the  island  of  St.  Thomas,  belonging 
to  the  King  of  Denmark,  and  naturalized  there)  traded 
from  thence  to  and  with  the  Spaniards,  in  war  with  her 
Majesty  ;  I  am  of  opinion,  his  being  naturalized  without 
the  license  of  her  Majesty  will  not  discharge  him  from 
the  natural  allegiance  he  owes  to  her  Majesty ;  howev- 
er, he  being  a  settled  inhabitant  in  the  island  of  St. 
Thomas,  under  the  King  of  Denmark,  and  not  having 
been  commanded  to  return  into  her  Majesty's  dominions, 
as  he  might  have  been,  though  naturalized  there,  his 
trading  with  the  Spaniards  from  that  island,  in  amity 
with  the  Danes,  will  not  be  a  capital,  if  any  offence  at 
all  i  and  therefore  I  cannot  advise  the  proceeding  against 
him  criminally  for  such  trading.  If  any  inconvenience 
happens  from  such  trading,  as  is  suggested  by  the  gov- 
ernor of  Barbadoes'  letter,  the  Queen's  subjects  may  be 
recalled  to  return  to  her  Majesty's  dominions,  and  if  they 
refuse,  and  after  trade  with  her  Majesty's  enemies,  they 
may  be  proceeded  against  criminally  for  such  trading, 
as  any  of  her  Majesty's  subjects  residing  in  her  planta- 
tions may  be  proceeded  against  for  trading  with  her 
Majesty's  enemies,  that  is,  for  a  misdemeanor;  for  I  do 
not  take  simple  trading  with  an  enemy  to  be  high  trea- 
son, unless  it  be  in  such  trade  as  furnishes  the  enemy 
with  stores  of  war. 

March  22,  1703-4.  EDW    NORTHEY. 


646  OPINIONS    OP    EMINENT    LAWYERS. 

(17.)  The  opinion  of  the,  Attorney-General,  Norton, 
.  whether  the  French  and  Spaniards  who  remained  in  th", 
ceded  countries  after  the  peace  of  1763,  were  aliens  or 
subjects. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified  to 
me  by  Mr.  Pownall's  letters  of  the  21st  of  December,  and 
the  first  of  March  last,  stating  that  great  difficulties  had 
frequently  occurred  from  the  question  whether  the  sub- 
jects of  the  crowns  of  France  and  Spain,  who  remain  in 
the  ceded  countries  in  America,  are  to  be  considered  as 
aliens  ;  and  intimating  more  particularly,  that  a  variety 
of  doubts  and  difficulties  had  occurred  as  to  the  ability 
of  aliens  to  acquire  property  in  America,  either  by  pur- 
chase, grant,  or  lease  from  the  crown ;  and  also  as  to  the 
situation  in  respect  to  the  laws  of  this  kingdom,  of  such 
subjects  of  the  crowns  of  France  and  Spain,  as  being  in- 
habitants of  Canada,  Florida,  and  the  ceded  islands  in 
the  West  Indies,  remain  there  under  the  stipulations  of 
the  last  definitive  treaty ;  and  therefore  desiring  my 
opinion,  whether  such  of  the  French  or  Spanish  inhab- 
itants of  Canada,  Florida,  and  the  islands  of  Grenada, 
Dominica,  St.  Vincent's,  and  Tobago,  as  being  born  out 
of  the  allegiance  of  his  Majesty,  and  also  remain  in  the 
said  countries  under  the  stipulations  of  the  definitive 
treaty,  are,  or  are  not,  under  the  legal  incapacities  and 
disabilities  put  upon  aliens  and  strangers  by  the  laws  of 
this  kingdom  in  general,  and  particularly  by  the  act  of 
navigation,  and  the  other  laws  made  for  regulating  the 
plantation  trade ;  and  if  it  should  be  my  opinion  that 


OF    THE    LAW    OP    NATIONS.  647 

they  are  under  such  disabilities  and  incapacities,  your 
Lordships,  in  that  case,  desire  my  sentiments  in  what 
manner  such  disabilities  may  be  removed.  I  have  taken 
Mr.  Pownall's  letters  into  my  consideration,  and  am 
humbly  of  opinion  that  those  subjects  of  the  crowns  of 
France  and  Spain,  who  were  inhabitants  of  Canada, 
Florida,  and  the  ceded  islands  in  the  West  Indies,  and 
continued  there  under  the  stipulations  of  the  definitive 
treaty,  having  entitled  themselves  to  the  benefits  there*- 
of,  by  taking  the  oaths  of  allegiance,  &c.  are  not  to  be 
considered  in  the  light  of  aliens,  as  incapable  of  enjoy- 
ing or  acquiring  real  property  there,  or  transmitting  it 
to  others  for  their  own  benefit;  for  I  conceive  that  the 
definitive  treaty,  which  has  had  the  saction,  and  been 
approved  and  confirmed  by  both  houses  of  parliament^ 
meant  to  give,  and  that  it  has,  in  fact  and  in  law,  given 
to  the  then  inhabitants  of  those  ceded  countries,  a  per-< 
manent  transmissible  interest  in  their  land  there  ;  and 
that  to  put  a  different  construction  upon  the  treaty  would 
dishonor  the  crown  and  the  national  faith,  as  it  would 
be  saying,  that,  by  the  treaty  they  were  promised  the 
quiet  ^enjoyment  of  their  property,  but,  by  the  laws  were! 
to  be  immediately  stripped  of  their  estates  ;  but  I  think 
that  no  aliens,  except  such  as  can  claim  the  benefit  of 
the  definitive  treaty,  or  bring  themselves  within  the 
seventh  of  his  late  Majesty,  are  by  law  entitled  to  pur- 
chase lands  for  their  own  benefit  and  transmit  them  to 
others,  either  from  the  crown  or  from  private  persons, 
in  any  of  his  Majesty's  dominions  in  North  America  or 
the  West  Indies. 

But  I  submit  to  your  Lordships,  whether,  as  it  is  a 
matter  of  the  highest  importance  that  those  countries 
should  be  settled,  and  perhaps  not  less  so  that  such  set- 


648  OPINIONS    OP    EMINENT    LAWYERS. 

tlements  should  be  made  without  draining  this  country 
of  its  inhabitants ;  whether  it  would  not  be  proper  to 
apply  to  parliament  for  a  naturalization  bill  for  those 
places,  under  proper  regulations,  as  well  to  encourage 
foreigners  to  go  thither,  as  to  quiet  such  aliens  as  may 
have  already  settled  there  under  the  common  received 
opinion  that  they  were  capable  of  holding  lands  there 
for  their  own  benefit,  and  disposing  of  them  in  any  man- 
ner they  might  think  proper,  in  common  with  the  rest 
of  his  Majesty's  liege  subjects. 

FLETCH.  NORTON. 
Lincoln's  Inn,  July  27,  1764, 

II. — Of  the  legal  effects,  resulting  from  the  acknowl- 
edged independence  of  the  United  States. 

A  re-statement  of  Mr.  Chalmers's  opinion  on  that  im- 
portant subject. 

The  question  is,  whether  the  inhabitants  of  the  United 
States,  who  had  been  born  within  the  King's  allegiance, 
and  remained  within  the  United  States  after  they  were 
acknowledged  by  the  King  to  be  independent  and  sov- 
ereign, continued  subjects,  having  the  rights  of  subjects; 
or  became  aliens,  having  the -rights  of  aliens,  from  that 
acknowledgment, 

During  the  year  1783,  which  forms  the  epoch  of  that 
event,  I  took  the  liberty  of  publishing  my  opinion  of 
those  effects.  Whatsoever  I  may  have  seen  or  heard 
since  that  epoch,  I  have  not  in  the  least  changed  my 
opinion.  And  as  abler  men  than  I  pretend  to  be  have 
avowed  and  published  very  different  sentiments  from 
mine,  it  may,  perhaps,  be  permitted  me  to  restate  and 
feinforce  my  original  opinion,  which  first  broke  the  ice 


OF    THE    LAW   OF    NATIONS. 

that  had  been  collecting  and  consolidating  for  so  many 
years. 

The  act  *  which  enabled  his  Majesty  to  conclude  a 
peace  or  truce  with  certain  colonies  in  North  America, 
declared  it  "to  be  essential  to  the  interests  and  the  wel- 
fare and  prosperity  of  Great  Britain  and  the  thirteen 
specified  colonies,  that  peace,  intercourse,  and  commerce, 
should  be  restored  between  them. 

The  treaty,  it  must  be  allowed,  is  explicit  enough  as 
to  the  political  associations  that  formed  the  states,  which 
are  expressly  acknowledged  ato  be  free,  sovereign,  and 
independent  states ;  and  the  King,  for  himself  and  his 
heirs  and  successors,  relinquished  all  claims  to  the  gov- 
ernment, propriety,  and  territorial  rights  of  the  same, 
and  every  part  thereof."  The  statute  of  the  22d  of  the 
King  does  not  take  notice  of  what  the  world  knew  suffi- 
ciently, that  thirteen  of  the  British  colonies  had  revolt- 
ed ;  neither  does  it  notice,  that  the  persons  forming 
those  colonies  which  had  declared  themselves  in  1776 
to  be  independent,  were,  and  had  always  been  the  King's 
subjects  ;  but  it  merely  enables  the  King  to  make  a 
peace  or  truce  with  any  commissioners  who  might  be 
sent  by  the  said  colonies,  or  any  of  them,  or  any  bodies 
politic,  or  descriptions  of  men  within  those  colonies  : 
and  the  treaty  is  altogether  silent  as  to  the  individuals 
who  formed  those  well  known  confederations :  it  admits 
the  thirteen  societies,  in  their  associated  capacity,  to  be 
free,  sovereign,  and  independent,  by  relinquishing  all 
claim  of  government  over  them :  yet  it  does  not  explic- 
itly renounce  the  allegiance  of  those  colonists,  who,  at 
the  epoch  of  the  war,  were  still  British  subjects,  in  con- 


*22Geo.  III.  chap.  46. 
83 


650  OPINIONS    OP    EMINENT    LAWYERS. 

templation  of  British  law :  for  it  does  not  declare  that 
the  citizens  of  the  United  States  shall  be  deemed  aliens 
in  future;  and  it  neither  excepts  nor  disowns  those  faith- 
ful subjects  who  had  retained  their  allegiance  and  ad- 
hered to  their  King  and  country. 

The  faithful  colonists  of  Great  Britain,  as  they  had 
been  born  within  the  King's  dominions,  were,  owing  to 
this  circumstance  alone,  constituted  subjects  of  the  King 
and  freemen  of  the  realm.  By  their  birth  within  the 
allegiance  of  the  crown  they  acquired  a  variety  of  rights, 
which  are  called  emphatically  by  lawyers  their  birth* 
rights,  and  which  can  never  be  forfeited  except  by  their 
own  misconduct,  and  can  never  be  taken  away  but  by 
the  law  of  the  land.  "  No  freeman,"  says  the  great  char- 
ter, "  shall  be  seized  or  imprisoned  or  outlawed  or  any 
way  destroyed,  except  by  the  legal  judgment  of  his 
peers,  or  by  the  law  of  the  land." 

It  is,  nevertheless,  a  very  different  consideration  with 
respect  to  those  colonists  who,  having  achieved  the  late 
American  revolution  by  their  efforts,  now  form  by  their 
residence  the  United  States.  Rights  may  be  undoubted- 
ly forfeited,  though  privileges  cannot  be  arbitrarily  tak- 
en away ;  a  man's  crimes,  or  even  misconduct,  may  de- 
prive him  of  those  immunities  which  he  might  have 
claimed  from  birth  or  derived  from  some  act  of  the  leg- 
islature :  he  may  be  outlawed  by  the  sentence  of  a  court 
of  justice,  or  he  may  be  banished  by  the  united  suffrages 
of  his  countrymen  in  parliament ;  the  American  citi- 
zens, who  voluntarily  abjured  their  sovereign,  avowed 
their  design  to  relinquish  their  character  of  subjects, 
however  contrary  to  law  their  relinquishment  undoubt- 
edly was.  The  American  subjects  who  swore  fidelity  to 
the  government  of  their  own  choice,  thereby  declared 


OF    THE    LAW    OP    NATIONS.  651 

their  election  to  be  no  longer  connected  with  a  state 
which  had  mortified  their  prejudices  rather  than  be- 
reaved them  of  rights:  and  by  that  conduct,  and  by 
those  offences,  the  devoted  colonists  forfeited  to  the  law 
all  which  the. law  had  conferred  on  them.  The  Ameri- 
can treaty  virtually  pardoned  their  misconduct  in  form- 
ing those  associations  which  were  admitted  to  be  free  : 
the  parliament,  by  its  recognition,  virtually  legalized  the 
election  which  the  revolted  citizens  of  those  states  had 
made. 

But  whether  that  treaty,  or  that  act  of  the  British 
legislature,  ought  to  be  construed  a  relinquishment  of 
their  allegiance,  with  the  obedience  that  is  inherent  in 
it,  or  as  a  pardon  of  their  faults,  whatever  were  commit- 
ted by  forming  those  associations  and  taking  oaths 
which  were  inconsistent  with  their  allegiance,  is  a 
point  which  needs  not  be  now  very  pertinaciously 
argued. 

The  term  nation  always  supposes  something  collect- 
ive, or  a  body  politic.  A  colony  is  also  a  body  politic, 
though  inferior  to  a  nation.  Each  of  the  revolted  colo^ 
nies,  when  it  departed  from  its  former  character  of  a 
colony,  became  a  state,  or  body  politic,  and  the  associa^ 
tion  of  those  thirteen  states  which  had  departed  thus 
from  their  character  of  colonies,  formed  a  nation,  or  body 
politic,  under  the  name  of  the  United  States.  The  King, 
by  the  definitive  treaty,  acknowledged  those  states  to  be 
free,  sovereign,  and  independent;  he  treated  with  them 
as  such,  and  he  relinquished  for  ever  all  claims  to  the 
government,  propriety,  and  territorial  right  of  the  same 
countries :  the  extent  of  those  territorial  rights  or  bound- 
aries of  the  United  States  were  distinctly  ascertained  and 
avowedly  declared  by  a  particular  clause  of  the  defini- 


652  OPINIONS    OP    EMINENT    LAWYERS. 

tive  treaty.  On  the  same  day  that  the  King  ratified  by 
a  formal  act  that  definitive  treaty,  the  whole  acts  of 
trade,  navigation,  and  revenue,  attached  upon  those  Uni- 
ted States,  as  a  nation  free,  independent,  and  sovereign. 
It  did  not  now  require  to  be  a  great  lawyer,  to  tell  that 
the  soil  of  such  a  nation  was  alien ;  that  the  products 
of  such  a  soil  were  alien  ;  that  the  ships  of  such  a  na- 
tion were  alien  *  and  that  the  navigators  of  such  ships 
were,  ex  prima  facie,  aliens. 

As  the  king  had  now,  by  the  treaty,  relinquished  for 
ever  all  claims  to  the  government  of  the  United  States, 
so  did  he,  incidentally,  relinquish  the  obedience  of  the 
various  people  forming  those  United  States :  as  the 
American  citizens,  who  formed  those  bodies  politic,  now 
owed  no  subjection  to  the  crown  of  Great  Britain,  they 
were  no  longer  British  subjects,  the  terms  subjection 
and  subjects  being  correlatives,  such  as  husband  and 
wife,  father  and  son,  sovereign  and  subject,  which  must 
always  have  a  reciprocal  relation  to  each  other  :  it  is 
one  thing,  says  SOUTH,  for  a  father  to  cease  to  be  a  fath- 
er, by  casting  off  his  son ;  and  another,  for  him  to  cease 
to  be  so,  by  the  death  of  his  son  :  in  this,  the  relation  is 
at  an  end  for  the  want  of  a  correlative,  and  in  the  same 
manner,  when  the  sovereign  relinquished,  by  the  treaty, 
in  the  due  performance  of  a  legal  trust,  all  claim  to  the 
government  of  the  United  States,  the  relation  of  the 
American  citizens  ceased  for  the  want  of  a  correlative. 

The  first  law  opinion  which  has  fallen  into  my  hands 
on  those  topics  was  that  of  Mr.  Kenyon,  dated  at  Ches- 
ter, on  the  llth  of  October,  1783*,  and  without  any 

*  The  definitive  treaty  was  sigped  on  the  3d  of  September,  1783.  The 
case  only  stated  to  Mr.  Kenyon  the  statute  12  Charles  II.  chap.  18.  sec. 
3.  8.  9.  with  this  N.  B.  "  These  questions  are  put  merely  to  know  how 


OF    THE    LAW    OP    NATIONS.  653 

hesitation  he  gave  it  as  his  opinion,  that  "  the  fair  con- 
struction of  the  act,  as  circumstances  now  stand,  is,  that 
goods,  the  produce  of  the  United  States,  may  be  import- 
ed into  this  country  from  the  place  of  their  growth,  up- 
on payment  of  the  duties  payable  by  foreigners,  and  up-» 
on  no  other  terms  "f."  The  next  opinion  which  has  fal- 
len in  my  way  is  that  of  Sir  William  Wynne,  which 
was  asked  by  the  board  of  customs,  whether  ships  of  the 
United  States  were  entitled  to  registers,  as  ships  of  the 
British  colonies,  which  is  such  an  opinion  as  was  to  be 
expected  from  such  a  jurist,  against  considering  such 
ships  as  British,  but  as  alien  J.  The  next  opinion  which 
has  occurred  to  me  is.  that  of  the  atttorney-general,  Ar- 
den,  in  Oct.  1788,  wherein  he  gives  it  as  his  judgment, 
that  there  can  be  no  trade  between  the  United  States 
and  the  British  West  Indies,  except  such  as  was  allowed 
by  the  King's  proclamation  |) .  All  those  opinions  go  to 
prove,  what  is  sufficiently  obvious  in  itself,  that  the  Uni~ 
ted  States  became  free,  sovereign,  and  independent,  un- 
der the  definitive  treaty  ;•  and  so,  must  be  deemed  foreign 
and  alien  to  the  British  nation  ;•  taking  it  for  granted, 
that  the  people  forming  those  United  States  must  be 
necessarily  aliens. 

Yet  are  there  books  which  propagate  different  doc- 

the  law  stands  upon  those  clauses,  without  any  regard  to  any  orders  of 
council  that  may  be  made  relative  to  the  trade  of  America,  under  the  act 
of  last  session  of  parliament.'^ 

tSee  this  opinion,  under  this  head,  No.  2. 

|  It  was  dated  on  the  19th  of  October,  1785.  The  late  Mr.  Thomas 
Boone,  the  chairman  of  the  board  of  customs,  assured  me  that  the  attor- 
ney and  solicitor-general  concurred  in  Sir  William  Wynne's  opinion. 
See  it  under  this  head,  No.  3. 

||  See  this  opinion,  under  this  head,  No.  4. 


654  OPINIONS    OF    EMINENT    LAWYERS. 

trines,  and  persons  of  ingenuity  who  avow  notions  that 
lead  them  to  consider  those  citizens,  who  were  born  uu-. 
der  the  allegiance  of  the  King,  to  be  still  entitled  to 
their  birth-rights,  as  subjects,  under  the  well  known  de- 
claration of  the  great  charter,  that  has  been  already 
quoted. 

But  every  nation  and  every  state,  under  whatever 
name,  must  consist  of  individuals,  men,  women,  and  chilr 
dren,  of  whatever  number ;  and  it  is  those  individuals, 
who  form  the  body  politic  of  every  such  nation  and  state. 
By  the  definitive  treaty,  the  King,  first,  acknowledged 
the  associations  of  individuals,  forming  the  United  States, 
to  be  free,  sovereign,  and  independent;  and,  secondly, 
relinquished  all  claims  to  the  government  and  territori- 
al rights  of  the  same.  According  to  those  notions,  then, 
the  country  of  the  United  States  is  relinquished,  as  sovr 
ereign.  and  the  inhabitants  thereof  are  admitted  to  be 
free  and  independent ;  yet  are  they  said  to  be  subjects, 
claiming  from  the  laws  of  England  their  birth-rights  as. 
British  subjects,  notwithstanding  their  own  election  to 
be  free  and  independent,  and  the  recognition  of  their 
election  by  their  former  sovereign.  Such  a  contradic- 
tion of  character  never  existed  in  any  code  of  law  in 
any  country ;  on  the  contrary,  the  Lord  chancellor  Eger-. 
ton  laid  it  down  as  a  principle,  in  delivering  his  judg- 
ment in  the  case  of  the  POST-NATI,  "  in  a  true  and  law- 
ful subject,  there  must  be  sulijectio,  fides,  e-t  obcdientia^ 
and  those  cannot  be  severed,  no  more  than  true  faith 
and  charity  in  a  true  Christian*."  Now,  the  notionsbe- 

*  See  Lord  Egerton's  speech,  which  he  published  in  1609,  p.  G4.  I 
presume  it  is  not  necessary  to  say,  that  when  the  lord  chancellor  gives 
his  judgment  on  the  case  before  him,  for  his  decision,  that  it  becomes 
a  part  of  the  law  of  the  land,  if  it  be  not  appealed  from,  and  reversed. 


OF    THE    LAW    OP    NATIONS.  655 

fore  mentioned  would  separate  from  the  character  of  a 
true  subject,  the  subjection,  the  fealty,  and  the  obedi- 
ence, which  is  so  essential  to  the  genuine  character;  and 
after  those  very  citizens  of  the  United  States  had  relin- 
quished their  faith,  allegiance,  and  obedience,  and  were 
acknowledged  by  the  King  to  be  free  and  independent, 
what  subjection,  what  faith,  what  obedience  could  re- 
main in  such  citizens?  We  may  now  infer  from  the 
foregoing  premises,  that  it  is  absurd- in  argument,  and 
unfounded  in  law,  for  any  person  to  claim  the  rights 
and  privileges  of  a  subject,  without  showing  his  subjec- 
tion, professing  his  faith,  and  owning  his  obedience.  Yes, 
the  American  citizens  are  free,  and  without  subjection ; 
yet  how?  Not  to  do  as  they  list ;  for  they  must  so  use 
their  freedom  and  independence  as  not  to  prejudice 
the  public  *  :  so  says  the  law  of  reason  and  policy,  res- 
publica,  ^referenda  esi  privatis  ;  and  so  affirm  many 
statutes  t- 

The  learned  and  elegant  Craig  traces  back  the  doc- 
trine of  foreign  birth,  alienage^  to  the  feudal  law,  of 
which  this  is  the  chiefest  rule :  unus  et  idem  duorum 
dominorum  homo  liyius  csse  non  potest,  that  is,  one  and 
the  same  person  cannot  be  liegeman  $  or  vassal,  of  two 
superior  lords.  lie  who  is  born  under  another  prince^ 
whose  liege  subject  he  is,  because  he  cannot  perform 
what  he  owes  to  his  true  lord,  is  put  away  from  the  fief 
in  another  country ;  for  he  cannot  keep  his  fealty  un- 

*  Commentary  upon  Fortescue,  20- 1. 

t  27  Edward  III.  12.  16;  28.  Edw.  III.  ch.  5  ;  23  Henry  VIII.  ch. 
16;  25  Hen.  VIII  ch.  13;  32  Hen.  VIII.  ch.  18,  19;  33  Hen.  VIII. 
ch.  7 ;  35  Hen.  VIII.  ch.  4  ;  1  Edw.  VI.  ch.  3.  5  ;  2  and  3  Edw.  VI. 
ch.  37  ;  1  and  2  P.  and  M.  ch.  5 ;  18  Eliz.  ch.  9.  15.  17. ;  8  Eliz.  ch.  3; 
23  Eliz.  ch.  5 ;  27  Eliz.  ch.  19,  &c. 


656  OPINIONS    OF    EMINENT    LAWYERS. 

tainted  and  inviolate  to  two  lords,  to  him  under  whonl 
he  is  born,  and  to  his  new  sovereign ;  neither  is  it  pos^ 
sible  for  him,  in  case  of  war  between  them,  to  succor 
them  both,  to  assist  both  as  a  soldier,  to  conceal  the  se^ 
crets  of  both  princes,  which  is  chiefly  required  by  the 
feudal  law.  This  able  writer  considers  this  doctrine  as 
universal  in  the  several  codes  of  the  European  nations  5 
it  is  even  so  by  the  law  of  nature :  no  man,  said  our 
Savior;  can  serve  two  masters,  for  he  will  hate  the  one 
and  love  the  other*.  If  the  feudal  law  were  a  branch 
of  the  common  law,  then  must  the  notion  which  attri- 
butes rights  to  the  former  subjects,  after  their  subjection 
was  relinquished  by  their  sovereign,  be  abhorrent  to  the 
common  law. 

The  American  citizens  can,  therefore,  by  no  mode  of 
speech;  nor  by  any  principal  of  law ;  of  the  law  of  na- 
ture, of  the  law  of  nations;  of  the  feudal  law,  of  the  com- 
mon law,  be  deemed  British  subjects,  unless  those  asso- 
ciations of  mankind  are  subjects,  who  owe  no  allegiance 
to  the  British  crown;  or  any  obedience  to  the  British 
government ;  that  allegiance,  which  is  said  to  include 
all  the  engagements  owing  from  subject  to  sovereign ; 
that  obedience,  which  is  styled,  emphatically,  the  very 
essence  of  law.  In  the  report  of  Calvin's  case,  it  is  said 
to  be  a  maxim  that  ligeance  is  a  reciprocal  tie,  quia  sicut 
subditus  tenetur  ad  obedienliam,  ita  rex  tenetur  ad  prrtec- 
tionem  1";  But  what  reciprocity  can  there  be,  or  what 
protection  claimed,  when  subjects  have  renounced  their 
allegiance,  refused  their  obedience,  and  the  King  there- 
tipon  renounces  their  allegiance;  and  releases  their  sub- 

*  Craig  on  the  succession  of  King  James,  25$. 
f  7  Co.  5. 


OF   THE    LAW    OP    NATIONS. 

jection,  by  acknowledging  their  freedom  and  independ- 
ence? The  King  gives  protection  to  his  subjects  by  his 
laws.  Ah  American  citizen,  claiming  his  birth-rights, 
must  apply  to  the  King's  laws ;  and  to  entitle  himself 
to  legal  protection,  he  must  show  that  he  is  a  subject, 
owning,  and  yielding  obedience-  If  he  cannot  do  that, 
he  must  fail  in  his  claims  of  rights,  like  the  Frenchwo- 
man in  the  time  of  Edward  I.  whose  case  is  reported  in 
HENGHAM  :  she  brought  a  writ  of  a/yell  against  Coble- 
dicke,  and  declared  of  the  seisin  of  Roger,  her  grand- 
father, and  conveyed  the  descent  to  Gilbert,  her  father, 
and  the  same  descent  from  her  father  to  herself;  and 
the  tenant  pleaded,  that  the  demandant  was  not  of  the 
legiance  of  England,  or  of  the  fidelity  of  the  King ;  and 
demanded  judgment.  This  was  held  to  be  good  and  suf- 
ficient, for  to  the  King  fidelity  and  allegiance  are  due  ; 
and  therefore  since  she  failed  in  that,  she  was  not  to  be 
answered,  and  thereupon  she  prayed  license  to  depart 
from  her  writ,  and  so  she  left  her  suit*. 

It  may  be  here  worth  inquiry,  if  something  to  this 
useful  purpose  may  not  appear  on  the  face  of  the  trea- 
ties with  the  United  States'?  By  article  4  of  the  defin- 
itive treaty,  it  was  stipulated  that  creditors  on  either 
side  should  meet  with  no  lawful  impediment  to  the  re- 
covery of  their  debts.  After  the  re-establishment  of 
peace  by  that  treaty,  the  subjects  and  citizens  of  the 
contracting  parties  were  not  at  war,  and  being  at  peace, 
there  could  not  be  any  legal  impediment  to  legal  reme- 
dies for  just  debts ;  but  in  contemplation  of  the  treaty  ^ 
the  subjects  of  the  one  power  and  the  citizens  of  the 
other  had  become  thereby  aliens  to  each  other.  The 

*  The  lord  chancellor  Egerton's  speech,  91-3. 

84 


658  OPINIONS    OP    EMINENT    LAWYERS. 

same  observations  may  be  made  upon  the  5th  article^ 
which  provides  that  persons  having  any  interest  in  con- 
fiscated lands,  either  by  debts,  marriage  settlements,  or 
otherwise,  should  meet  with  no  lawful  impediment  in 
the  prosecution  of  their  just  rights.  It  may  be  more- 
over remarked  that  Adams  and  Jay,  two  of  the  Ameri- 
ican  negociators,  were  lawyers,,  the  first  being  chief  jus- 
tice of  Massachusetts,  and  the  last  chief  justice  of  the 
United  States,  and  both  Adams  and  Jay  knew  the  mean- 
ing of  their  own  terms,  whatever  the  British  negociator 
may  have  done.  This  reasoning  is  confirmed  by  an  ar- 
ticle in  the  commercial  treaty  between  Great  Britain 
and  the  United  States,  which  was  negociated  in  Novem- 
ber, 1794,  by  Lord  Grenville  and  the  same  John  Jay : 
it  was  agreed  by  article  9,  "  that  British  subjects  who- 
now  hold  lands  in  the  United  States,  and  the  American: 
citizens  who  now  hold  lands  in  his  Majesty's  dominions, 
shall  continue  to  hold  themr  according  to  the  nature  and 
tenure  of  their  respective  states  and  titles  therein,  and 
may  grant,  sell,  or  devise  the  same,  as  if  they  were  na- 
tives, and  that  neither  they,  nor  their  heirs,  or  assigns, 
shall,  so  far  as  may  respect  the  said  lands,  and  the  legal 
remedies  incident  thereto,  be  regarded  as  ALIENS  *,"  Is 

*  The  37  G-eo.  III.  ch.  97.  was  made  for  carrying  into  execution  that 
treaty  of  commerce.  •  By  section  24,  the  9th  artide  above  stated  was  rat- 
ified, any  law,  custom,  or  usage,  to  the  contrary  notwithstanding.  The 
article  before  mentioned  was  adopted  by  the  negociators  of  it,  as  they 
considered  the  people  of  Great  Britain,  and  United  States,  to  be  aliens 
to  each  other;  and  the  parliament  confirmed  this  article,  ex  abundante 
cautela,  notwithstanding  the  well-known  law,  custom,  and  usage,  to  the 
contrary ;  yet  are  there  some,  who  consider  this  statute  as  a  proof,  that 
the  citizens  of  the  U  nited  States  are  not  aliens.  There  is  another  stat- 
ute, which  also  shews  the  sense  of  parliament  on  this  topic:  the  30t& 
Geo.  III.  ch.  27.  for  encouraging  the  settling  of  the  British  colonies,  by 
inhabitants  from  the  United  States,  required  such  emigrants  to  the  Brit.- 


OP   THE    LAW    OP    NATIONS.  659 

it  not  apparent  then  from  the  foregoing  intimations,  that 
in  the  judgment  of  the  negociators  of  the  several  trea- 
ties between  Great  Britain  and  the  United  States,  and 
in  contemplation  of  parliament,  the  subjects  of  the  first 
country  and  the  citizens  of  the  last  were  considered  as 
foreigners  to  each  other  ? 

Yet  are  we  still  told  that  those  people  of  the  United 
States,  who  were  born  British  subjects,  even  now  con- 
tinue to  be  entitled  to  their  original  birth-rights ;  and 
for  this  singular  notion  the  great  charter  of  English  lib- 
erties is  quoted,  that  no  freeman  shall  be  outlawed,  or 
any  way  destroyed,  except  by  the  judgment  of  his  peers, 
.or  by  the  law  of  the  land.  But  is  not  this  argument 
conceived  upon  too  narrow  principles  to  apply  apposite- 
ly to  the  present  question,  relative  to  thousands  of  men, 
rather  than  to  one  man  ?  The  fundamental  principle  is 
sound  law,  but  it  does  not  reach  the  case  of  the  inhabit- 
ants of  thirteen  colonies,  who  revolted  from  the  British 
empire,  who  rose  in  arms  against  the  King's  govern- 
ment, renouncing  their  allegiance,  and  claiming  their 
freedom  from  any  further  obedience  to  British  laws,  and 
acting  thus  against  all  law  during  seven  years,  were  re- 
cognized by  the  King,  in  pursuance  of  the  high  trust  in- 
vested in  him  by  those  laws,  to  be  independent  and  sov- 
ereign, without  subjection  or  obedience.  Is  it  not  a  suf- 
ficient answer  to  such  pretensions,  as  a  claim  of  rights 
without  submission,  volenti  non  Jit  injuria  /  you  have 
elected  to  be  aliens,  and  you  have  been  recognized  by 
the  King,  the  fountain  of  all  jurisdiction,  to  be  what  you 
have  chosen  for  yourselves;  and  the  laws,  from  which 

ish  colonies,  to  take  the  oath  of  allegiance,  upon  their  arrival  and  settle- 
ment; but,  in  this  case,  none  but  aliens  would  have  been  required  to 
take  the  oath  of  allegiance  to  the  king. 


660  OPINIONS    OF    EMINENT    LAWYERS. 

you  claim  your  rights,  cannot  acknowledge  you  in  any 
other  character  than  you  have  chosen  for  yourselves, 
and  have  been  recognized  to  belong  to  you :  you  profesa 
not  to  owe  any  allegiance  to  the  King,  or  obedience  to 
his  laws,  and  under  .such  circumstances,  you  cannot  re- 
ceive protection  from  either,  whatever  rights  you  may 
have  once  possessed,  quod  est  inconveniens,  aut  contra 
rationem,  non  permissum  est  in  lege*. 

In  the  argument  of  the  instructive  case  of  Campbell 
and  Hall,  in  Hilary  Term,  1774,  it  was  said  by  Mr.  AL- 
LEYN,  the  "learned  ceunsel  for  the  plaintiff,  "the  techni- 
cal learning  of  Westminster-hall  can  give  but  little  as- 
sistance to  the  decision  of  this  question.  The  great 
principles  of  the  law  of  empire  must  determine  it,  and 
the  political  history  of  England  affords  particular  illus- 
trations of  it."  This  course  must  r^ram  be  pursued,  in 
illustrating  the  question  of  the  alienage  of  the  Ameri- 
can citizens,  which  may  be  inquired  into  under  two 
heads : 

1st.     How  aliens  may  become  subjects  ; 

2d.     How  subjects  may  become  aliens. 

As  to  the  first  head  ;  it  is  in  general  true,  that  an  al- 
ien born,  coming  into  England,  and  desiring  to  become 
a  subject,  cannot  be  naturalized  but  by  parliament,  that 
is,  without  the  consent  of  the  nation :  this  seems  to  have 
been  always  the  law  of  England,  though  it  was  other- 
wise of  old  in  Normandy,  where  the  prince  might  nat- 
uralize. An  act  of  naturalization,  thus  obtained  from 
parliament,  cures  the  alien's  disabilities,  as  if  he  had 
been  born  in  England,  and  by  apt  clauses  an  act  of  nat- 
uralization may  be  so  made  as  to  cure  other  disabilities ; 

*  Coke,  Litt,  178. 


OP    THE    LAW    OF    NATIONS.  661 

yet  is  it  inaccurate  to  say  that  a  person  may  be  natural- 
ized by  being  born  in  any  dominion  of  the  King  while 
he  was  King  of  England,  or  born  upon  the  King's  seas, 
or  born  under  the  statute  of  Edward  III.  de  natis  ultra 
mare  /  for  such  subjects  never  were  aliens. 

During  the  late  reign  the  parliament  extended  the 
benefits  of  naturalization  to  such  foreign  protestants,  as 
should  reside  for  a  limited  time  in  the  King's  planta- 
tions *,  and  protestant  officers,  being  foreigners,  were 
naturalized  by  parliament  upon  performance  of  special, 
services ;  and  foreign  seamen,  upon  performing  nautical 
services  on  board  British  shipping.  The  colonial  assem- 
blies did  pass  acts  of  naturalization,  which  were  limited 
in  their  operation  by  several  statutes  imposing  disabili-. 
ties  on  aliens  and  denizens ;  they  were  bound  also  by 
the  limited  nature  of  their  jurisdictions,  and  at  the  be- 
ginning of  the  present  reign,  a  general  instruction  was. 
given  by  the  King  to  his  governors  of  colonies  not  to 
assent  to  any  act  of  assembly  granting  naturalization  to 
any  foreigners,  as  such  acts  might  trench  upon  the  stat- 
ute law  of  the  land,  and  thus  operate  against  the  policy 
of  the  state. 

Yet,  Ventris  hath  reported  Sir  Matthew  Hale,  the 
chief  baron,  to  have  said  in  Lord  Holderness's  case,  that 
''Naturalization,  according  to  our  law,  can  only  be  by 
parliament,  and  not  otherwise  t-"  There  must  be  sure- 
ly some  mistake  here,  as  such  a  judge  could  not  have  so 
far  allowed  his  vigilance  of  observation  to  have  sluni- 
bered.  as  to  say  that  naturalization  cannot  be  otherwise 

*  7  Gco.  II  ch.  21 ;  13  Geo.  II.  ch.  4;  20  Geo.IL  ch.  45;  2Geo.  Ill' 
ch.  25;  13  Geo.  III.  ch.  25 ;  23  Geo.  III.  ch.  20. 

1  Vent.  419-20. 


662  OPINIONS    OP    EMINENT    LAWYERS. 

than  by  parliament.  The  chief  baron,  it  seems,  did  not 
advert  that  thousands  and  tens  of  thousands,  millions 
and  tens  of  millions  of  people  have  been  naturalized  by 
the  act  and  operation  of  law  and  thus  became  subjects. 
Mr.  Wallace,  who  argued  for  the  defendant  in  the  case 
of  Campbell  and  Hall,  remarked,  what  may  well  be  re- 
membered, "  It  is  not,  as  formerly,  when  the  conqueror 
gained  captives  arid  slaves  and  absolute  rights  by  the 
law  of  nations,  but  now,  the  conqueror  obtains  dominion 
and  subjects."  This  beneficial  change  probably  took 
place  as  early  as  the  age  when  the  ravages  of  the  Danes 
were  softened  by  the  introduction  of  Christianity  or  pre- 
vented by  the  progress  of  civilization.  There  is  howev-. 
er  but  little  in  our  law  books,  as  hath  been  already  inti- 
mated, of  naturalization  by  conquest;  for  slow  is  the  pro~ 
gress  of  jurisprudence  as  a  science:  yet  was  it  said,  "  If 
the  King  of  England  make  a  new  conquest,  the  persons 
there  born  are  his  subjects ;  but  if  it  be  taken  from  him 
again,  the  persons  there  born,  afterwards,  (after  being 
conquered,)  are  aliens*."  This  was  saying  but  very 
little  in  advance  of  a  more  rational  construction,  as  it  is 
not  said  that  the  alien  people  who  had  been  conquered 
by  the  arms  of  the  crown  became  subjects  of  the  crown 
by  act  and  operation  of  the  law.  It  is  not  easy  to  as- 
certain the  epoch  when  the  law  became  thus  understood ; 
I  should  guess  that  such  a  principle  of  law  became  prev 
alent  soon  after  the  arrival  of  the  Normans,  who  argued 
very  acutely  about  sovereignty  and  subjection.  It  was 
certainly  understood  as  early  as  the  reign  of  Henry  II. 
when  the  people  of  Ireland  were  supposed  to  have  be- 
come his  subjects,  from  his  conquest. 

*  Dyer,  224;  Vaughan,  281-2. 


OP    THE    LAW    OF    NATIONS.  663 

Let  us  now  listen  to  the  soft  voice  of  Lord  Mansfield, 
when  delivering  the  judgment  of  the  King's  Bench,  in 
the  well-known  case  of  Campbell  and  Hall.  "  In  the 
acquisition  of  conquests,  it  is  limited  by  the  constitu- 
tion," says  he,  "  to  the  King's  authority,  to  grant  or  re- 
fuse a  capitulation ;  if  he  refusCj  and  put  the  inhabitants 
to  the  sword,  all  their  lands  belong  to  him;  if  he  receive 
the  inhabitants  under  his  protection  and  grant  them 
their  property,  he  has  the  power  to  fix  the  conditions  5 
he  is  entrusted  with  making  the  treaty  of  peace^  and  he 
may  yield  up  the  conquest,  or  retain  it,  upon  such  terms 
as  he  shall  think  fit  to  agree  to."  These  powers,  (in 
the  King,)  no  man  ever  disputed;  neither  has  it  hither- 
to been  controverted  but  that  the  King  might  change 
part  of  the  government  of  Granada,  or  all  the  political 
form  of  the  government  of  a  conquered  dominion.  He 
afterwards  added,  "  it  is  not  to  be  wondered  that  an  ad- 
judged case  in  point  has  not  been  produced ;  no  dispute 
ever  was  started  before  upon  the  King's  legislative  au- 
thority over  a  conquest ;  it  never  was  denied  in  West- 
minster-hall ;  it  never  was  questioned  in  parliament ;  it 
was  so  decided  in  Calvin's  case."  Lord  Mansfield  then 
run  over  the  history  of  the  conquests  made  by  the  crown 
of  England,  in  order  to  confirm  and  illustrate  his  judicial 
doctrines ;  beginning  with  that  of  Ireland  and  ending 
with  that  of  New  York.  In  all  those  cases  of  conquest, 
the  previous  aliens  became  subjects  of  the  crown,  by 
subsequent  conquest ;  and  of  course  were  virtually  nat- 
uralized, by  the  act  and  operation  of  law.  "  The  con- 
quered inhabitants,  once  received  under  the  King's  pro- 
tection," said  Lord  Mansfield,  in  judgment,  "  became 
subjects,  and  were  to  be  universally  considered  in  this 
light,  and  not  as  enemies  OR  ALIENS*." 

*  Cowper's  Reports,   204.     But  Lord  Mansfield,  while  he  paid  the 


664  OPINIONS    OF    EMINENT    LAWYERS. 

The  first  opinion  which  I  have  found  on  such  topics 
is  that  of  John  de  Witt,  in  1G67,  with  the  remarks  there- 
on by  Sir  William  Temple  who  was  then  ambassador  in 
Holland.  This  opinion,  which  was  called  a  discourse, 
was  given  in  consequence  of  the  treaty  of  Breda,  1667j 
whereby  England  ceded  Surinam  to  Holland  ;  and  Hol- 
land ceded  New  York  to  England,  with  plenary  right  of 
sovereignty,  propriety,  and  possession.  These  expres- 
sions were  deemed  by  De  Witt,  and  tacitly  acknowb- 
edged  by  Temple,  of  sufficient  force  to  transfer  the  alle- 
giance of  the  Dutch  colonists  at  New  York  to  the  En- 
glish crown,  who  thereby  became  subjects,  as  Lord  Mans- 
field remarked,  and  ceased  to  be  considered  as  enemies 
and  aliens*  The  next  opinion  which  I  have  found  is 
that  of  the  attorney-general  Pratt,  in  August  1759,  who, 
with  the  solicitor-general  Yorke,  was  consulted  by  the 
board  of  customs  on  the  effect  of  the  recent  capitulation 
of  Guadaloupe.  His  opinion  Was,  that  this  island  must 
be  considered  as  now  one  of  the  British  plantations;  the 
right  of  sovereignty  being  changed,  the  whole  island  as 
the  King's,  in  right  of  conquest,  and  the  whole  colonists 
as  become  his  Majesty's  subjects*.  Mr.  Solicitor  ^gener- 
al,  C.  Yorke,  gave  a  separate  opinion  on  that  occasion  to 

greatest  deference  to  the  opinions  of  the  law  officers  of  the  crown,  when 
formally  given,  seems  not  to  have  been  aware  of  the  opinion  of  the  At* 
torney-general  Northey,  in  1704,  with  regard  to  the  part  of  St.  Christo- 
pher's, then  recently  conquered.  "Her  Majesty  may,"  said  Northey, 
"  if  she  shall  be  so  pleased,  under  her  great  seal  of  Kngland,  direct  that 
the  like  duty  (of  four  and  a  half  per  cent.)  be  levied,  for  goods  to  be  ex- 
ported, from  the  conquered  part;  and  that  command  will  be  a  law  there } 
her  Mnjcsty,  by  her  prerogative,  being  enabled  to  make  laws  that  will 
bind  places  obtained  by  conquest,  and  all  that  shall  inhabit  therein*" 
This  proves  also  that  those  conquered  people,  being  now  obedient  to  her 
power,  were  subjects  and  not  aliens ;  as  she  could  only  legislate  for  such 
a  people,  by  acts  under  the  great  seal  of  England. 
*  See  this  opinion,  under  this  head. 


OF    THE    LAW    OP    NATIONS.  665 

the  same  effect:  "I  am  of  opinion,"  said  he,  "that  Gua- 
daloupe  is  now  to  be  considered  as  a  plantation  or  terri- 
tory belonging  to  the  King  by  conquest ;  and  the  peo- 
ple thereof  owed  in  consequence  an  allegiance  to  his 
Majesty,  as  his  subjects  resident  in  a  plantation  belong- 
ing to  his  crown*."  Yet  some  doubts  being  entertained 
by  persons  abroad  and  at  home,  whether  the  French 
and  Spaniards  who  remained  in  the  ceded  countries  af- 
ter the  peace  of  1763  were  aliens  or  subjects,  the  attor- 
ney-general, Norton,  gave  it  as  his  opinion  to  the  board 
of  trade,  that  "those  French  and  Spaniards  are  not  to 
be  considered  in  the  light  of  aliens,  but  as  his  Majesty's 
liege  subjects."  Yet  the  bill  in  parliament  which  he 
advised  for  quieting  those  doubts,  was  never  passed,  per- 
haps never  proposed  ;  as  wiser  men  than  Norton,  prob- 
ably, considered  such  advice  as  weak ;  the  law  being 
clear.  Who  could  doubt,  whether  such  French  and 
Spaniards,  being  the  King's  subjects,  and  not  aliens,  were 
riot  entitled  to  the  rights  of  subjects  !  Lord  Mansfield 
delivered  it  as  the  judgment  of  the  court  of  King's 
bench,  in  the  before  mentioned  case  of  Campbell  and 
Hall,  "  that  the  law  and  legislative  government  of  eve1 
ry  dominion  equally  affects  all  persons  arid  property 
within  the  limits  thereof;  and  is  the  true  rule  for  the 
decision  of  all  questions  arising  there  :  whoever  pur- 
chases, lives,  or  sues  therej  puts  himself  under  the  law 
of  the  place.  An  Englishman  in  the  island  of  Minorca, 
the  isle  of  Man,  or  in  the  plantations,  has  no  privilege 
distinct  from  the  natives  t."  I  have  now  delivered  ex- 
plicitly what  has  occurred  to  ine  on  this  first  head  of 

*  See  this  opinion  under  this  head. 

t  See  the  report  of  the  case  of  Campbell  and  Hall. — Cowper. 

'85 


666  OPINIONS    OP    EMINENT    LAWYERS. 

» 

argumentation,  how  aliens  may  become  subjects,  which 
we  now  see  must,  and  may,  be  done  by  act  of  parlia- 
ment, or  by  the  operation  of  law.  By  such  operations 
of  law,  it  is  not  too  much  to  assert,  that  there  have  been 
acquired  to  the  British  empire,  since  the  commencement 
of  the  present  reign,  forty  millions  of  subjects.  . 

Secondly,  I  will  now  proceed  under  this  second  head 
to  inquire  how  subjects  may  become  aliens  7  The  per- 
sons and  the  property  of  the  English  people  have  been 
guarded  with  great  anxiety  by  their  laws,  which  have 
made  surety,  in  those  respects,  double  sure*. 

Yet  did  the  common  law,  as  we  may  learn  from  Brae- 
ton,  allow  of  disfranchisement  and  of  banishment:  an  in- 
dividual might  be  interdicted  his  province,  his  city,  or 
his  town;  or  he  might  have  been  interdicted  his  king- 
dom, for  years,  or  for  life ;  and  abjuration  was  a  legal 
exile,  as  well  by  the  statute  law,  as  by  the  common; 

lawt. 

Yet  neither  the  law  of  exile  nor  the  law  of  security 

applies  to  the  present  operation,  which  relates  to  many 
subjects,  not  to  one  subject ;  and  which  turns  upon  cir- 
cumstances of  rational  policy,  and  not  upon  points  of 
judicial  practice ;  it  involves  this  high  consideration  of 
public  interest,  whether,  if  the  state  be  in  danger,  the 
rights  of  the  few  may  not  be  sacrificed  to  the  benefit  of 
the  many  :  and  the  foregoing  considerations  lead  on  to 
the  inquiry,  whether,  as  subjects  may  be  obtained  by 
the  act  and  operation  of  law,  subjects  may  not  be 
relinquished  also,  by  the  act  and  operation  of  law. 

*  By  the  great  charter,  -which  has  been  so  often  confirmed,  and  by  the 
greatest,  and  best  explanatory  act  of  the  28th  Ed.  III.  ch  3. 

t  West,  the  second,  c.  35  ;  Selden  Mare  Glaus.  12;  Molloy,  De  jure 
maritime,  358,361. 


OP    THE    LAW    OP    NATIONS.  667 

The  King  certainly  cannot,  by  any  special  act,  dis- 
franchise a  particular  subject :  though  by  his  judges,  sit- 
ting in  his  bench,  a  subject  may  be  outlawed  on  proper 
process  for  that  end,  operating  upon  the  demerits  of  the 
party ;  yet  the  king,  by  authority  of  that  high  trust 
wherewith  he  is  invested  by  the  constitution  of  making 
war  and  peace,  may  relinquish,  by  treaty,  the  subjection 
of  many  subjects ;  as  in  the  performance  of  this  trust, 
the  act  of  the  King  virtually  includes  the  act  of  the  na- 
tion ,  for  if  it  were  otherwise,  by  the  understanding  of 
the  law  of  nations,  treaties  of  peace  could  never  be  made 
between  belligerent  powers.  Rex  et  subditi  sunt  rela- 
tlva:  said  Lord-chancellor  Egerton,  in  giving  his  judg- 
ment in  Calvin's  ease*.  There  cannot,  he  adds,  be  a 
king  of  land,  without  subjects ;  for  that  were  but  im- 
perium  in  lelluas:  so,  neither  can  there  be  subjects, 
without  their  king ;  for  then  the  terms  king  and  subject 
would  not  be  correlatives.  Hence  we  may  infer,  as  the 
Lord-chancellor  intimated,  that  the  true  correlatives  are 
sovereignt}^  and  subjection  t:  if  the  subjection  be  with- 
drawn, and  so  admitted,  the  sovereignty  is  gone;  if  the 
sovereignty  be  removed,  then  is  the  subjection  gone;  and 
the  subjection  being  gone,  the  people,  owing  no  subjec- 
tion, are  no  longer  subjects;  for  they  are  all  correlatives, 
which  cannot  exist  without  each  other. 

On  this  second  head,  how  subjects  may  become  aliens, 
any  more  than  on  the  first,  it  is  not  to  be  wondered,  as 
Lord  Mansfield  remarked,  that  an  adjudged  case  in  point 
cannot  be  produced ;  no  dispute  was  ever  started  before 
as  to  the  king's  power,  in  making  a  treaty  of  peace,  to 
relinquish  a  province  with  the  allegiance  of  the  provin- 
cials. 

*  His  speech,  printed  1609.  p.  104. 
t  Ibid.  73.  ' 


668  OPINIONS    OF    EMINENT    LAWYERS. 

But  if  we  trace  this  point  historically,  the  operation 
of  law  will  become  very  apparent.  The  Lord -chancellor 
Egerton  said,  what  all  the  judges  indeed  affirmed,  in  ar- 
guing the  case  of  the  posl-nati,  that  King  Henry  II.  had 
England  and  Normandy  by  descent  from  his  mother,  the 
Empress  Maud ;  and  Anjou  and  Main  by  descent  from 
his  father,Geoffry  Plantagenet;  and  he  that  was  born,  the 
chancellor  went  on  to  say,  in  any  of  the  king's  domin- 
ions, and  under  the  king's  obedience,  is  the  king's  liege 
subject,  and  born  ad  fidem  regis  /  (for  that  is  the  proper 
and  ancient  word,  which  the  law  of  England  hath  used; 
ad  fidem  regis  Anglice,  ad  fidcm  regis  Jfcranci®;)  and 
therefore  he  cannot  be  a  stranger  or  alien  to  the  king, 
or  in  any  of  his  kingdoms .;  and  by  consequence  is  ena- 
bled to  have  lands  in  England,  and  to  sue,  and  be  sued, 
in  any  real  action  for  the  same  *. 

King  John,  the  youngest  son  of  Henry  II.  lost  all 
those  French  dominions  to  Philip,  the  French  king,  in 
1204  t-  Upon  this  transaction,  whereby  England  lost 
so  many  provinces,  what  was  the  operation  of  law  ?  Is 
it  not  apparent,  that  the  people  of  those  provinces  no 
longer  remained  ad  fidem  regis^  in  obedience  to  John, 
and  that  they  must  have  sworn  fealty  to  Philip  ?  When 
the  sovereignty  of  those  provinces  thus  ceased  to  be  in 

*  The  Lord-chancellor's  published  speech,  62,  4. 

t  Brady  says,  by  his  negligence,  Hist.  i.  474.  The  president  Henault 
tells  a  somewhat  different  story  :  King  John,  who  was  a  peer  of  France, 
was  cited  before  the  court  of  peers  in  France, -to  be  judged  for  the  mur- 
der of  Arthur  :  he,  did  not  appear  :,  he  was  declared  a  rebel,  for  his  con- 
tumacy; and  of  consequence,  his  lands  were  confiscated:  he  was  con- 
demned to  death  for  the  murder  of  his  nephew,  committed  within  the  ju- 
risdiction of  France:  -Philip  annexed  Normandy,  and  John's  other 
French  dominions,  all  but  Guyenne,  to  the  crown  of  France. — Chron. 
Hist,  de  France,  i.  197-8.  Consult  du  Tillet,  Chron.  abr.  les  Roys  de 
France,  48,  under  the  year  1204. 


OP    THE    LAW    OP    NATIONS.  669 

the  king  of  England,  the  subjection  of  the  people,  with- 
in the  same,  also  ceased.  We  may  infer  as  much  from 
the  following  records,  M.  4,  Henry  III.  in  dower,  the 
defendant  pleaded,  quod  pi'tcns  cst  ch  potestate  regis 
Francioe,  ct  resi.dcns  in  Francia;  et  provisum  e-st  a  con- 
silio  ?egis>  quod  nullus  de  potcst.atc,  reg'is  FrancicB  res- 
pondtalur  in  A.nglia  antequam  Angli  rcsjwndeantur  de 
jure  suo  in  Jfrancia  * :  this  the  plaintiffs  attorney  could 
not  deny;  and  thereupon  the  judgment  was,  ider>  sine 
d^e^.  There  is  a  record  of  the  7th  Hen.  III.  [1223]: 
Buronibus  Normannm  quod  ad  servitium  rcgis  rcdeanf± ; 
which  evinces  that  the  people  of  those  French  provin- 
ces, by  the  forfeiture  of  John,  became  aliens  to  Eng- 
land. 

The  Lord-chancellor  went  on,  in  the  progress  of  his 
argument  to  say,  that  Henry  III.  had  Aquitain  by  de- 
scent from  his  grandmother  Eleanor,  the  daughter  of 
the  Duke  of  Aquitain ;  Edward  I.  had  the  same  by  de* 
scent,  and  part  of  Scotland  by  conquest ;  Edward  II. 
and  Edward  III.  had  the  same  by  descent ;  and  Edward 
III.  claimed  all  France  by  descent  from  his  mother,  and 
had  the  most  part  of  it  in  possession  ;  and  so  had  Henry 
V.  and  Henry  VI.  Now,  adds  the  chancellor,  in  those 
king's  reigns  the  subjects  born  in  those  countries,  being 

*  Fitz.  Dower,  179. 

f  The  Lord-chancellor  Egerton's  speech  on  the  Fostnati,  13,  14.. 

|  Kym.  Foed.  1.  260  :  the  writ  therein  contained  was  tested,  by  the 
justiciary  of  England,  who  knew  the  meaning  of  his  own 'terms.  Shard 
vouched  the  case  of  a  Norman,  who,  with  some  English,  had  robbed  di- 
vers of  the  king's  subjects,  in  the  narrow  seas;  and  who  being  taken 
and  arraigned,  the  Norman  was  found  guilty  only  of  felony,  and  the  rest 
of  treason;  for  that  Normandy  being  lost  by  king  John,  was  out  of  the 
allegiance  of  Ed.  III.  and  the  Norman  was  accounted  an  alien.  Shard 
quoted  40  assize,  pi.  24 ;  and  see  Calvin's  case,  7th  report. 


670  OPINIONS    OF    EMINENT    LAWYERS. 

then  under  their  obedience,  were  no  aliens,  but  capable 
of  lands  in  England*.  History  must  tell  how  those 
kings  of  England  lost  those  dominions  in  France  :  did 
the  obedience  of  the  people  of  those  dominions  continue 
to  England?  No:  when  the  sovereignty  of  the  kings 
of  England  was  lost,  the  subjection  of  their  French  sub- 
jects also  ceased,  and  thenceforth  became  aliens  to  the 
crown,  and  were  therefore  incapable  of  holding  any 
lands  in  England  ;  as  we  may  learn  from  the  before  ci-. 
ted  authorities  and  records,  and  even  from  Brae  ton. 

But  the  aptest  precedent  for  the  American  treaty, 
1782r3j  which  can  be  found  in  the  records  of  England, 
is  the  treaty  of  Northampton,  1328,  that  acknowledged 
the  independence  of  Scotland  t-  The  three  Edwards 
endeavored,  by  the  intrigues,  the  fraud,  and  force,  of 
more  than  forty  years,  to  subdue  Scotland.  The  coun-r 
try  was  again  and  again  overrun ;  the  people  and  their 
chiefs  fell  in  the  field  or  bled  on  the  scaffold ;  and  the 
limbs  of  the  illustrious  Wallace  were  exhibited  on  the 
public  places.  Yet  such  was  the  persevering  spirit  of 
the  nation,  such  the  skilful  valor  of  their  leaders,  such 
the  unconquerable  magnanimity  of  their  king,  that  after 
a  struggle  of  more  than  forty  years,  they  compelled  Ed- 
ward III.  with  the  assent  of'his  parliament,  to  acknowl- 
edge the  independence  of  Scotland +.  The  sovereignty 

*  Speech,   1609.  04,  5. 

t  There  was  a  previous  act  of  parliament  made,  at  York,  on  the  1st 
of  March,  1327-8,  entitled,  Relaxatio  super ioritaiis  Scotiee,  Rym. 
Foed.  iv.  337.  This  act  of  parliament  went  much  beyond  the  mere  re- 
lease of  the  superiority  :  it  relinquished  the  country,  or  kingdom,  accord- 
ing to  its  ancient  limits;  and  it  released  all  subjection,  service,  claim,  or 
demand  of  the  country,  or  its  people. 

$  See  the  cancelled  Par.  Rec.  85-7;  4  Rym,  337-8.  Sir  Edward 
Coke,  and  Sir  Mat.  Hale,  in  discussing  the  connexion  of  the  English  and 


OP    THE    LAW    OP    NATIONS.  671 

of  England,  and  the  submission  of  Scotland,  were  re- 
nounced ;  the  people  of  Scotland  were  acknowledged  to 
be  free,  and  became  of  course  aliens  to  England,  as  the 
subsequent  events  evince,  as  the  treaty  of  Perth  *  in 
1335  plainly  shows ;  and  owing  to  those  causes,  the  peo- 
ple of  England  and  of  Scotland  were  aliens  to  each  oth- 
er at  the  epoch  of  King  James's  accession,  as  the  rea- 
sonings of  the  judges  in  Calvin's  case  demonstrate. 

Come  we  now  to  the  case  of  Calais,  which  is  some- 
what singular :  in  1347,  it  was  taken  by  Edward  III. 
who  invited  English  merchants  to  settle  in  it;  so  that 
it  now  partook  of  a  mixed  nature,  of  a  conquest  first-, 
and  of  a  colony  afterwards,  something  like  the  condition 
of  St.  Christophers  after  its  colonization  and  conquest. 
In  1558,  Calais  was  retaken  by  France,  at  the  end  of 
two  hundred  and  eleven  years  connexion.  In  1559,  un- 
der the  treaty  of  Chateau  Cambresis,  Calais  was  to  re- 
main eight  years  in  possession  of  France,  and  then  to 
be  restored,  provided  Queen  Elizabeth  behaved  well  in 
the  mean  time  t-  But  Elizabeth  and  Cecil  were  med- 
dlers by  nature ;  and  they  would  interfere  in  the  affairs 
of  Scotland  and  of  France  :  so  Calais  remained  in  the 
hands  of  the  conquerors.  The  sovereignty  of  Calais 
seems  thus  to  have  remained  during  those  eight  years 
in  a  sort  of  abeyance ;  and  during  that  period,  persons 
who  were  born  there  were  clearly  aliens,  as  they  were 

Scots  laws,  wrote  but  idly ;  as  they  seerri  not  to  have  known,  that  the 
treaty  of  Northampton  was  made  under  the  authority  of  two  acts  of  par- 
liament: but.  Sir  Bulstrode  Whitloke  knew  that  it  was,  and  says,  "the 
peace  between  England  and  Scotland,  2  Ed.  III.  was  concluded,  by  the 
parliament,  at  Northampton." — Collectanea.  Juridica,  ii.  334. 

*  See  the  treaty,  in  Avesbury,  24-27. 

t  15  Rym.  505,  &c. ;  the  president  Henault's  Abr.  Chron.  i.  476-7 


672  OPINIONS    OF    EMINENT    tiAWYERS. 

born  out  of  the  ligeance  of  the  king,  and  in  a  country 
out  of  the  possession  of  the  crown.  The  whole  people 
afterwards  were  considered  as  aliens,  by  operation  of 
law ;  as  the  sovereignty  of  the  town  and  the  subjection 
of  the  people  were  both  lost  to  England  for  ever: 

Let  us  now  advert  to  the  condition  of  Surinam  and 
New  York,  under  the  treaty  of  Breda-  1667,  when  Eng- 
land ceded  the  first  to  Holland,  in  full  sovereignty,  pro- 
priety, and  possession;  while  Holland,  in  the  same  man- 
ner, ceded  New  York  to  England.  During  the  effluxion 
of  the  preceding  century,  the  law  of  nations  had  been 
very  much  discussed  by  Grotius,  Selden,  and  other  em- 
inent jurists ;  and  statesmen  now  argued  every  case, 
arising  from  events,  with  more  accuracy,  and  decided 
with  more  precision.  The  disputes  arising  out  of  the" 
treaty  of  Bredaj  came  to  be  settled  by  John  de  Witt  and 
Sir  William  Teniple :  de  Witt  gave  his  opinion  in  a  dis: 
course,  which  is  hereinafter  printed ;  and  he  was  an- 
swered by  Temple,  whose  paper  is  also  printed :  it  was 
plainly  insisted  on  by  the  one,  and  tacitly  agreed  by  the 
other,  that  the  English  who  remained  in  Surinam  be- 
came Dutch  subjects  so  completely  that  they  became 
aliens  to  England,  and  could  not  even  apply  to  their 
native  country  in  any  manner,  for  aid  or  consideration, 
consistent  with  the  law  of  nations.  In  the  same  man- 
ner, the  Dutch  people  at  Manhattan,  as  New  York  was 
then  called,  became  completely  English  subjects  and  al- 
iens to  their  native  land*. 

*  It  is  to  be  regretted,  that  Sir  Lionel  Jenkins,  who  was  then  the  lead- 
ing civilian,  did  not  answer  De  Witt ;  as  we  should  have  had  disclosed 
more  law,  than  Temple  seems  to  have  possessed  :  my  researches  lead  me 
to  suppose,  that  there  was  no  law  opinion  asked,  by  the  English  govern- 
ment, on  that  occasion.  The  English  people  were  afterwards  removed 
from  Surinam. 


OP    THE    LAW    OP    NATIONS.  673 

The  wars  and  the  treaties  of  subsequent  times  do  not 
supply  much  information,  and  throw  scarcely  any  light 
on  this  head  of  our  inquiry.  The  peace  of  Ryswick, 
1697,  by  restoring,  generally,  what  had  been  lost  by 
either  party  to  their  former  possessor,  furnishes  very 
little  observation  :  the  main  point  of  that  treaty  was  the 
direct  acknowledgment  of  William  III.  as  King  of  Eng-- 
land,  and  the  dominions  thereunto  belonging.  The 
peace  of  Utrecht,  1713,  is  much  more  instructive:  the 
conquered  part  of  St.  Christophers  was  now  resigned, 
in  sovereignty  and  possession;  Newfoundland,  with  its 
adjacencies,  were  resigned  in  full  sovereignty  to  Great 
Britain  :  from  this  epoch  the  statute  of  William,  regu- 
lating the  government  and  fishery  of  this  valuable  is- 
land, attached  upon  both.  Nova  Scotia,  according  to 
its  ancient  boundaries,  was  resigned  to  Great  Britain ; 
but  there  was  a  proviso  that  the  French  subjects  might 
remove  if  they  should  think  fit ;  or  if  they  should  re- 
main, to  enjoy  their  religion  as  far  as  the  laws  of  Britain 
allowed :  this  form  of  words  shows  in  what  manner  an 
act  of  parliament  limits  the  king's  power  of  making  trea- 
ties; and  there  was  also  a  proviso,  that  commissaries 
should  be  appointed  to  settle  "who  ought  to  be  account- 
ed the  subjects  and  friends  of  Britain  and  of  France  ;" 
alluding  chiefly  to  the  American  Indians,  as  the  friends 
of  both  parties.  From  Spaing  Britain  obtained  Gibral- 
tar and  Minorca,  in  full  sovereignty,  and  the  assiento 
trade,  according  to  former  stipulations ;  Gibraltar  and 
Minorca  have  always  been  governed  as  conquests,  but 
the  assimto  could  hot  be  received,  according  to  former 
stipulations,  as  it  was  opposed  by  the  acts  of  navigation. 
Here  are  sufficient  illustrations  of  two  of  our  principles 

of  law  in  respect  to  treaties. 
86 


674  OPINIONS    OP    EMINENT    LAWYERS. 

The  peace  of  Aix-la-Chapelle,  1748,  does  not  supply, 
though  it  provides  for  mutual  restorations,  any  instruct- 
ive observation.  Yet  the  war  which  was  then  ended 
ought  to  be  deemed  productive  of  much  information,  if 
it  produced  nothing  but  the  report  of  Sir  George  Lee, 
the  judge  of  the  admiralty  court,  and  of  the  advocate, 
attorney,  and  solicitor-general,  Paul.  Ryder,  and  Mur- 
ray,  on  the  Prussian  ships  carrying  neutral  property*. 
There  were  published,  about  that  time,  various  works 
on  similar  topics,  which  certainly  made  the  powers  of 
Europe  much  better  acquainted  with  the  instructive  doc- 
trines of  the  law  of  nations. 

The  peace  of  Paris  1763,  as  it  retained  much,  and 
gave  but  little  in  return,  left  a  wide  field  open  for  illus- 
trative observation.  The  French  King  again  relin- 
quished the  whole  of  Nova  Scotia  with  all  its  dependen- 
cies, Cape  Breton  and  the  other  islands  in  the  gulf  of 
St.  Lawrence,  Canada  with  all  its  dependencies  and  peo- 
ple. The  King  of  Great  Britain,  on  his  part,  granted  to 
the  inhabitants  of  Canada  the  liberty  of  the  catholic  re- 
ligion 't  he  allowed  the  Canadians  the  freedom  of  selling 
their  estates  to  his  subjects,  and  of  retiring  within  eigh- 
teen months ;  but  there  is  nothing  said  on  the  ligeance 
of  the  Canadians  if  they  should  not  retire.  The  sover- 
eignty, property,  and  possession,  of  the  country  of  Can- 
ada, was  ceded  by  the  Most  Christian  King ;  and  of 
course^  the  subjection  and  faith  of  the  inhabitants,  who 

*  Collpclania  Juridica,  i.  No.  5. — There  is,  herein,  a  note,  stating 
that,  "this  report  contains  a  thorough  investigation,  and  justification,  of 
the  principles  adhered  to,  by  the  court  of  admiralty,  in  England,  in  cases 
of  capture  of  the  ships  and  property  of  neutral  powers,  ia  time  of  war.  It 
was  composed  on  a  memorable  occasion,  by  the  united  abilities  of  the 
great  law  officers  of  the  crown  ;  and  has  ever  since  been  received,  as  the 
standard  authority,  in  cases  of  that  nature." 


OF    THE    LAW    OF    NATIONS.  675 

thereby  became  subjects  of  the  crown,  and  who,  of  course, 
became  entitled  to  the  several  rights  of  the  British  sub- 
jects.    The  King  restored  to  France  the  islands  of  Gua- 
daloupe,  Mariegalante,  Desirade,  Martinico,  and  Belisle ; 
with  a  proviso  that  the  King's  subjects,  who  might  have 
settled  in  any  of  those  islands,   might  retire  with  their 
effects  at  any  time  within  eighteen  months  ;  bub  there 
is  nothing  said  of  the  King's  subjects,  whom  he  had  con- 
quered thereon,  or  who  might  have  been  born  after  the 
conquest  and  before    the  restoration ;  they   were   relin- 
quished, by  operation  of  law,  as  well  as  in  fact.     Those 
clauses  in  this  treaty,  and  those  circumstances,  come  up 
fully  to  the  law  which  has  been  already  intimated  from 
Dyer  and  Vaughan,  "  if  the   King  of  England   make  a 
conquest,  the  persons  there  born  are  his  subjects ;  but  if 
it  be  taken  from  him  (or  he  cede  it,)  the  persons  there 
born  (after  such  cession   or  capture)  are    aliens*  ;"  but, 
how  did  they  become  aliens?     The  answer  must  be,  by 
act  and  operation  of  law.     This  general  principle   may 
be  illustrated  by  other  clauses  of  this  memorable  treaty. 
The  Christian  King  ceded  Grenada  and  the  Grenadines 
to  Great  Britain,  with  the  same  stipulations  in   favor  of 
the  inhabitants  ;  who  might  retire,  but,  if  they  remained, 
became  subjects.     The  neutral  islands  were  partitioned 
in  this  manner  :  St,  Vincent,  Dominica  and  Tobago,  re- 
mained  to   Great   Britain ;  St.  Lucia  was   delivered  to 
France  ;  and  from  this   stipulation  it  followed,  that  the 
French  people  became  English  subjects  ;  and  the  Eng- 
lish planters  on  St.  Lucia  became  French  subjects,  if  they 
remained,  by  the  act  and  operation  of  law.     Great  Brit- 
ain and  Spain  arranged  their  conquests  in  this  manner  : 

•Dy.224;  Vaugh.  281-2. 


OPINIONS    OP    EMINENT    LAWYERS. 

Britain  restored  to  Spain  the  Havana  and  part  of  Cuba  ; 
Spain  ceded  to  Britain  the  Floridas ;  and  the  island  of 
Minorca  was  ceded  to  Britain,  in  the  same  condition  as 
when  conquered :  so  that  the  Spanish  people  of  this  is- 
land, who  had  become  English  subjects  when  originally 
conquered,  became  again  English,  by  a  sort  ofjusp36-tli- 
minii  *.. 

The  treaties  of  Versailles,  1783,  are  less  glorious,  but 
full  as  instructive :  Great  Britain  restored  to  France  St. 
Lucia,  and  ceded  Tobago.  The  British  subjects  in  both 
were  allowed  to  retain  their  possessions  or  to  retire  with- 
in eighteen  months  :  France  restored  to  Great  Britain, 
Grenada  and  the  Grenadines,  St.  Vincent's,  Dominica,  St. 
Christophers,  Nevis,  and.  Mon-tserrat,  with  the  same  stip-, 
ulations  in  favor  of  the  French  planters.  Great  Britain 
ceded,  in  full  right,  Minorca  to  Spain,  with  the  same 
stipulations  in  favor  of  British  subjects  :  Great  Britain 
also  ceded  to  Spain  the  two  Floridas,  with  a  similar 
proviso  that  the  British  subjects  might  retire ;  and  Spain 
ceded  to  Great  Britain  the  Bahamas,  with  a  similar 
stipulation  in  favor  of  the  Spanish  subjects  who  might 
there  remain.  It  is  quite  apparent  from  the  foregoing 
facts  and  reasonings,  that  those  alterations  of  sovereign- 
ty changed  the  nature  of  the  ligeance  of  the  people ;  so 
that  they  were  aliens  or  subjects,  acceding  to  the  na-. 
ture  of  their  residence  and  subjection. 

After  this  full  discussion  of  so  many  treaties,  let  us 
again  advert  to  the  definitive  treaty  with  the  United 
States ;  when  this  subject  was  considered  in  the  house 
of  lords,  Lord  Loughborough  said,  that  the  King  could 
not,  in  virtue  of  his  prerogative,  cede  Canada  or  Florida 

*  The  case  of  Fabrigas,  and  General  Mostyn,  which  was  decided,  in 
1773,  by  a  verdict  of  three  thousand  pounds  against  the  General,  evin- 
ces, sufficiently,  that  the  Spanish  people  of  Minorca  were  English  sub; 
jects. 


OP    THE    LAW    OF    NATIONS.  677 

without  the  sanction  of  parliament.     The  Lord-chancel- 
lor, when  he   delivered  his   sentiments,   treated   Lord 
Loughborough's  opinion  with  no  great  respect.     What 
has  been  so  often  done  before,  could  not  be  done  now  : 
But  what    sort  of  logic  is  it,  to  reason  against  facts  1 
When  the  same  subject  was  under  consideration  in  the 
house  of  commons,  with  respect  to  the  powers  of  the  pre- 
rogative, Mr.  Wallace  and  Mr.  Lee  maintained  that  the 
King  could  not  abdicate  a  part  of  his  dominions,  or  de- 
clare any  number  of  his  subjects  free  from  obedience  to 
his  laws :  the  contrary  was  asserted  by  the  attorney- 
general  ;  and  both  parties  pledged  themselves,  if  the  mat- 
ter should  come  regularly  into  discussion,  to  make  good 
their  several  opinions  *.     But  the  day  of  discussion  nev- 
er came,  and  all  wise  men  saw  that  such  extravagant 
doctrines,  though  they  might  have  done  very  well  at 
the  sad  epoch  of  civil  war,  could  not  be  soberly  rrxain- 
tained  in  time  of  domestic  quiet.     The  King  most  un- 
doubtedly enjoys  from  the  constitution  the   exclusive 
power  of  making  war  and  peace :  this  is  a  fundamental 
principle  of  the  law  of  nations ;  it  is  one  of  the  pillars  of 
society  itself;  and  it  has  been  argued  by  writers  on  the 
law  of  nature  and  nations,  that  though  individuals,  an- 
tecedent to  all  society,  (if  such  a  state  ever  existed,)  had 
the  right  of  war,  this  right  was  given  up  when  they  en- 
tered into  society  :  it  is  said  to  be  upon  the  same  prin- 
ciple that  the  King  enjoys  the  sovereign  power  of  mak- 
ing treaties,  leagues,  and  alliances  with  foreign  states 
and  princes  t-     But  was  there  not  an  act  of-  parliament 

*  Annual  Register,  1783.  . 

t  If,  however,  it  were  necessary  to  lay  on,  or  take  off  taxes,  the  king 
cannot  do  this  without  the  provision  of  parliament ;  if  regulations  have 
been  previously  made  under  parliamentary  authority,  as  in  the  case  of 


678  OPINIONS    OF    EMINENT    LAWYERS. 

made  to  enable  the  King  to  make  a  peace  with  the  Uni- 
ted States?  Yes;  yet  is  it  singular  to  remark, that  the 
said  act  was  not  used :  it  was  neither  recited  nor  allud- 
ed to,  in  either  the  preliminary,  or  definitive  treaty  of 
peace  with  those  thirteen  states.  The  King's  constitu- 
tional power  was  deemed  sufficient,  without  the  special 
statute,  which  had  been  suggested  ex  atnmdante  cautela 
by  the  same  spirit  which  suggested  the  repeal  of  the 
stamp  act ;  and  thereby  created  much  of  the  mischief 
which  was  now  pressed  upon  the  nation  for  remedy. 

The  history  of  our  diplomacy  evinces  the  truth  of  the 
general  principle  which  is  recognized  by  every  law. 
King  William,  by  the  treaty  of  Ryswick,  granted  and 
received  cessions  of  conquests  in  war.  Queen  Anne,  by 
the  treaty  of  Utrecht,  made  some  cessions,  and  received 
more.  King  George  II,  by  the  treaty  of  Aix  la  Chap- 
elle,  agreed  to  cede  and  receive  all  conquests  since  the 
war  commenced.  King  George  III.  by  the  treaty  of 
Paris,  received  much  and  ceded  little.  By  the  peace  of 
Versailles,  1783,  when  the  treaties  in  question  were 
made  and  ratified,  the  King  granted  to  France  fisheries, 
factories,  island;:,  and  territories,  and  received  much  in 
return.  The  King  ceded  to  Spain  the  island  of  Minor- 
ca, and  the  two  provinces  of  the  Florida?,  and  such  oth- 
er countries  as  might  have  been  taken,  and  received  in 
return  from  Spain,  the  Bahamas.  It  was  the  opinion  of 

Newfoundland  and  its  fishery,  a  treaty  cannot  warrant  the  repeal  of  such 
regulations ,  as  this  must  be  done  by  parliament  or  not  at  all :  so,in  making 
commercial  treaties,  regulations  are  to  be  made  or  repealed  which  can 
only  be  done  by  parliament;  and  if  parliament  disapprove  of  such  a 
treaty,  it  must  fall.  All  those  cases  arc  exceptions  to  the  general  princi- 
ple of  the  royal  power  to  make  war  and  peace. 


OP    THE    LAW    OF    NATIONS.  679 

parliament,  that  too  much  had  been  given  to  those  sev- 
eral powers,  yet  this  opinion  did  not  nullify  or  vitiate 
the  treaties :  it  only  operated  upon  the  responsibility  of 
ministers,  whom  it  virtually  removed  from  the  power  of 
doing  further  mischief:  this  is  merely  a  collateral  point, 
which,  according  to  the  wisdom  of  our  constitution,  does 
not  trench  at  all  upon  the  King's  authority  to  make  war 
or  peace. 

Whether  that  Vote  of  parliament  extended  to  the  trea- 
ty with  the  United  States  is  somewhat  doubtful ;  but 
there  can  be  no  doubt  whether  that  treaty  were  not  the 
most  exceptionable.  Why  relinquish^  under  the  pre- 
tence of  settling  boundaries,  countries  larger  than  Great 
Britain,  to  which  the  United  States  had  no  pretensions'? 
Why  grant  the  Newfoundland  fishery,  which  Britain 
guards  as  every  man  his  nursery  1  They  had  no  claim 
to  any  thing  beyond  their  independence.  In  the  other 
treaties,  the  rights  of  individuals  Were  carefully  guarded ; 
in  the  treaty  with  the  United  States  they  were  con- 
temptuously disregarded.  The  statesmen  who  made 
this  treaty  pleaded  in  vain  as  a  justification,  that  the 
congress  would  have  the  Western  Countries — the  con- 
gress insisted  on  a  right  to  the  Newfoundland  fishery  ; 
the  congress  had  only  the  power  to  recommend  private 
persons  and  their  claims  to  the  particular  states :  yes^ 
the  congress  have  done  nothing  since  but  make  claims 
and  continue  to  make  ckiims.  If  the  congress  or  the 
president  had  not  complete  authority  to  make  war  and 
peace,  this  defect  had  been  a  fatal  objection .  to  the  full 
powers  of  the  negociators.  This  ought  to  be  a  beacon 
to  such  negociators  who  may  be  appointed  hereafter  to 
treat  with  the  commissioners  of  the  United  States,  whose 
full  powers  ought  to  be  carefully  examined. 


680  OPINIONS    OP    EMINENT    LAWYERS. 

But  whatever  there  may  be  in  those  objections  and 
defences,  the  question  still  recurs,  could  the  King,  under 
the  authority  and  trust  which  he  possesses  from  the  con- 
stitution, acknowledge  the  independence  and  sovereign- 
ty of  thirteen  revolted  colonies'?  Could  he  renounce  the 
government  of  the  people  forming  those  United  States 
in  future  ?  Could  he  renounce,  of  course,  the  subjection 
of  the  people  1  The  answer  must  be  in  the  affirmative ; 
he  renounced  at  the  same  time  other  provinces  and  is- 
lands, with  British  people  thereon,  and  no  doubt  has 
been  made  whether  those  territories  have  not  been  le- 
gally cededj  and  the  subjection  of  the  people  constitu- 
tionally changed,  After  the  restoration  of  peace,  an  a- 
sylum  was  offered  within  the  remaining  colonies  to  those 
colonists  who  might  think  fit  to  retire  from  within  the 
United  States;  many  did  retire,  but  many  more  remain- 
ed, and  the  question  is,  whether  those  who  thus  remained, 
and  were  acknowledged  to  be  free  from  subjection,  and 
independent  in  their  governments,  could  nevertheless 
claim  the  privileges  of  subjects  1  If  they  be  aliens  by 
the  renunciation  of  their  submission,  they  cannot  claim, 
the  privileges  of  subjects;  and  that  they  are  aliens  is 
clear :  since  they  do  not  poseess  any  one  of  the  charac- 
teristics of  true  and  lawful  subjects,  they  have  neither 
suljectio,  fides,  vel  obedientia  /  they  lost  all  those  char- 
acters of  subjects  by  the  act  and  operation  of  law,  work- 
ing upon  their  own  actions ;  renouncing  their  allegiance 
and  electing  to  be  aliens.  What  is  done  by  treaty  is 
jaridice  factum  /  so  non  Ixsura  populi :  but  although 
the  King  never  could,  and  cannot  now,  disfranchise  any 
subject,  yet  his  courts  of  justice  could,  at  common  law, 
disfranchise  and  outlaw  his  subjects  on  proper  process 
issuing  upon  the  delinquencies  of  the  offending  parties; 


OP   THE    LAW    OP    NATIONS.  681 

In  the  same  manner,  when  the  King  executes  the  great 
trust  of  making  treaties  of  peace,  whereby  provinces  are 
ceded,  and  the  provincials,  though  unoffending  subjects, 
are  disfranchised,  the  law  will  justify  and  warrant  what 
it  empowers  and  enables  the  executive  authority  to  per- 
Form  and  enforce  ;  and  a  disfranchisement  performed  in 
^this  manner  by  the  King's  negociators,  is  as  much  done 
by  the  law  of  the  land,  as  an  outlawry  pronounced  by 
the  king's  judges,  in  the  court  of  king's  bench :  consut- 
tudo  regni  Anglic  e&t  Lex  Anglic. 

Mr.  Professor  Woodeson  indeed  informs  us,  that  when 
fty  a  treaty,  especially  if  ratified  by  act  of  parliament, 
our  sovereign  cedes  any  island  or  region  to  another  state, 
the  inhabitants  of  such  ceded  territory,  though  born  uri- 
der  the  allegiance  of  the  king,  or  being  under  his  pro- 
tection while  it  appertained  to  his  crown  and  authority, 
became  effectually  aliens,  or  liable  to  the  disabilities  of 
alienage,  in  respect  to  their  future  concerns  with  this 
country  ;  and  similar  to  this  seems  the  condition  of  the 
revolted  Americans  since  the  recognition  of  their  inde- 
pendent commonwealth  *. 

Now  let  us  listen  to  Mr.  Professor  Blackstone,  who 
says  that  "Natural  allegiance  is  a  debt  of  gratitude, 
which  cannot  be  forfeited,  cancelled,  or  altered,  by  any 
chance  of  time,  place,  or  circumstance,  nor  by  any  thing, 
but  the  united  concurrence  of  the  Legislature  ;"  :  yet 
Professor  Blackstone  had  already  well  argued  the  king's 

*  Woodeson's  Vin.  Lectures,  i.   382.     This  law  has    been   collected 
into  Bacon's  Abr.  1798,  i.    129.     I  have  argued  the  several  poir.ts  upon 
common  law  principles.     To  introduce   the  ratification  of  parliament  is 
to  weaken,  rather  than  strengthen,  the  argument,   from  these  principles  : 
if  parliament  decide,  it  is  decided ;  no  one  argues  with  the  omniscience 
of  parliament;  no  one  contends  with  the  omnipotence  of  parliament ! 

*  1  Blacks.  369. 

87 


682  OPINIONS    OP    EMINENT    LAWYERS. 

constitutional  authority  to  make  war  and  peace,  from 
the  law  of  nature,  from  the  law  of  nations,  from  the  law 
of  England :  the  Professor  therefore  wrote  contradic- 
torily, without  knowing  this  unlucky  circumstance.—^ 
His  general  position  is  sound  law  :  that  natural  allegiance 
is  such  a  debt  from  the  subject,  that  it  cannot  be  altered 
or  cancelled  by  the  act  of  the  party  'himself,  even  with 
the  concurrent  help  of  any  prince  or  potentate  or  pow- 
er :  it  must  be  relinquished  by  some  act  of  law,  which 
amounts  to  the  assent  of  the  king  and  nation,  and  a 
solemn  treaty  is  that  necessary  act ;  but  the  conclusion 
of  Blackstone's  position  is  not  law,  as  he  words  it,  yet 
may  it  be  made  law,  by  adopting  the  emphatical  lan- 
guage of  the  great  charter  :  no  freeman  shall  be  destroy- 
ed or  disfranchised,  but  by  the  lawful  judgment  of  his 
peers,  or  by  the  law  of  the  land,  which  is  the  safest 
language,  on  occasions  of  this  sort,  as  the,  law  will  at- 
tach according  to  the  necessity  and  nature  of  the  case 
before  it. 

Let  us  now  hear  what  the  judges  said  in  Calvin's 
case  :  *  "  so,  albeit  the  kingdoms  of  England  and  Scot- 
land should,  by  descent,  be  divided  and  governed  by 
several  kings,  yet  was  it  resolved,  that  all  those  that 
were  born  under  one  natural  obedience,  while  the  realms 
were  united  under  one  sovereign,  should  remain  natural- 
born  subjects,  and  no  aliens ;  for  that  naturalization, 
due  and  vested  by  birthright,  cannot,  by  any  separation 
of  the  crowns,  afterward  be  taken  away ;  nor  he  that 

*  7  Co.  27  b.  Coke's  report  of  Calvin's  case  was  reprinted  by  James 
Watson,  at  Edinburgh,  in  1705,  when  parties  ran  high,  at  the  union, 
iTor  the  information  of  such  as  would  know  the  rights  and  privileges  of 
Scotsmen  residing  in  England,  and  of  Englishmen  residing  in  Scotland." 
I  have  in  my  library  a  copy  of  this  reprinted  report. 


OF    THE    LAW    OP    NATIONS.  683 

was  by  judgment  of  law,  a  natural  subject  at  the  time 
of  his  birth,  become  an  alien  by  such  a  matter  ex  pisl 
fact) ;  and  in  that  case  our  poitnatus  may  be  ad Jidern 
utriusquc  regi-s,  as  Bracton  saith. 

This  resolution  is  supposed,  and  said,  to  be  decisive  of 
the  case  now  in  question,  like  other  decided  cases;  but 
this  resolve  was  not  the  point  before  the  court,  which 
was  that  of  one  Colvil,  or  Calvin,  as  he  is  called,  who 
had  been  born  in  Scotland,  after  the  accession  of  King 
James  to  the  throne  of  England,  and  brought  an  action 
for  the  recovery  of  a  house  and  tenement  in  London :  it 
was  pleaded  in  bar  of  his  action,  that  he  was  a  Scots- 
man who  was  born  out  of  the  allegiance  of  the  King, 
and  when  the  court  decided,  that  being  born  after  the 
accession  of  the  King,  Calvin  was  a  subject,  and  not  an 
alien,  the  case  was  decided  in  his  favor,  and  of  course 
the  resolution  of  the  judges  on_a  supposed  contingency, 
as  beforementioned,  was  a  mere  extra-judicial  opinion, 
which  is  no  authority  at  all,  whatever  there  may  be  in 
the  argument. 

Let  us  now  attend  to  the  Lord  chancellor  Egerton, 
when  giving  his  judgment  in  this  very  case  of  Calvin  : 
'•'Wherefore  of  the  many  and  divers  distinctions,  divi- 
sions, and  subdivisions,  that  have  been  made  in  this 
case,  I  will  s&y  no  more,  butconftisuni  estqnicquidinpul- 
verem  seclam  ezt,  and  will  conclude  with  bishop  Juel,  a  man 
may  wander  and  miss  his  way  in  the  mists  of  distinc- 
tions. *  As  the  king,  nor  his  heart,  cannot  be  divided, 
for  he  is  one  entire  king  over  all  his  subjects,  -in  which 
soever  of  his  kingdoms  or  dominions  he  were  born,  so  he 
must  not  be  served,  nor  obeyed,  by  halves:  he  must 

*  His  published  speech,  62,  1 02. 


684  OPINIONS    OF    EMINENT    LAWYE-RS. 

have  entire  and  perfect,  obedience  of  his  subjects  ;  foE- 
ligsnti'i  (as  Baron  Heron  said  well)  must  have  four 
qualities  :  1.  Para  &  sin<plex  ;  2.  Integra  &,  solida  ;  3. 
TJniv'ir sails  nan  loculis  /  4.  Permanens  continua,  & 
illTsa.  Divide  a  man's  heart,,  and  you  lose  both  parts 
of  it  and  make  no  heart  at  all,  so  he  that  i«  not  a-n  en- 
tire subject,  but  half-faced,  is  no  subject  at  all."  Apply 
this  solid  sense  to  the  condition  of  the  American  citizens, 
after  their  allegiance  was  renounced  by  the  king's 
acknowledgment  of  the  sovereignty  of  the  United 
States,  and  the  subjection  of  their  citizens  was  also  dis- 
owned by  the  king's  solemn  act,  under  a  constitutional 
trust ;  yes,  say  some,  the-  United  States  are  sovereign 
and  independent,  the  American  citizens  owe  no  allegi- 
ance or  subjection,  yet  do  they  claim,  their  birthrights. 
,  The  proper  answer  to  such  pretensions  is,  you  have  lost 
your  birthrights  by  your  own  acts,  and  the  operation  of 
law  upon  your  several  acts  ;  ab  as  Just  is.  non  sit  injuria. 
When  the  king,  acting  in  pursuance  of  a  solemn  trust 
derived  from  the  constitution,  renounced  all  claim  of 
government  over  you,  and  of  course,  released  your  sub- 
jection, the  king  thereby  signified  the  assent  of  the  na- 
tion that  you  should  be  no  longer  subjects  bat  aliens  ; 
for  in  making  every  treaty,  the  king,  as  trustee  for  the 
nation,  binds  the  nation  by  his  diplomatic  acts.,,  and 
lex  nil  jt.ihet  fru-stra. 

Who  sees  not,  that  the  Lord  chancellor,  in  what  he 
said  above,  glanced  at  the  extra-judicial  resolution  and 
illogical  reasoning  of  the  judges  before  mentioned '?  What 
sort  of  logic  was  it  to  reason  in  a  circle  ?  It  never  was 
a  principle  of  the  law  of  England  that  subjects  could 
be  ad  fidcm  utriusque  regis,  as  we  have  already  seen  in 
the  learned  Craig's  discussions.  It  never  was  a  princi- 
ple of  the  law  of  nature,  as  we  may  learn  from  our 


OF    THE    LAW    OF    NATIONS.  685 

Saviour's  de3laration,  though  there  might  be  exceptions 
to  the  general  rule,  under  special  privilege,  as  the  Ejarl 
marshal,  who  was  mentioned  by  Bracton;  so,  m  the 
treaty  of  Utrecht,  article  21,  the  French  king  engaged 
to  cause  justice  to  be  done  to  the  family  of  Hamilton 
concerning  the  dukedom  of  Chatelherault,  and  to  the 
Duke  of  Richmond  concerning  such  requests  as  he  had 
to  make,  and  to  Charles  Douglass  concerning  some  lands 
to  be  claimed  by  him,  and  so  of  others.,  Thus  might 
the  Duke  of  Hamilton,  and  the  Duke  of  Richmond,  and 
the  Duke  of  Queensberry,  owe  a  double  allegiance ;  but 
this  exception  only  proves  the  general  principle. 

Well,  but,  says  Sir  Edward  Coke,  naturalization,  due  by 
birthright,  cannot,  by  any  separation  of  the  crowns, 
afterward  be  taken  away ;  yet  how  was  it  before  and 
after  the  treaty  of  Northampton,  1328,  of  which  Sir 
Edward  seems  to  have  been  but  lamely  informed  ?  In 
the  21st  of  Edward  I.  Macduff,  a  Scotsman,  appealed 
against  a  judgment  of  his  sovereign,  John,  Baliol,  to 
Edward,  as  his  superior  lord,  and  the  King  of  England 
received  the  appeal  and  caused  justice  to  be  done  ;  *  but 
when  the  sovereignty  of  England  was  renounced  by  that 
treaty,  the  homage  of  the  Scottish  king  and  people  was 
determined  and  they  became  aliens,  t  and  therefore  no 
such  appeal  or  suit  can  be  shewn  in  any  record  under 
the  treaty  of  Northampton,  as  Scotland  was  now  alien 
to  England,  as  hath  been  already  shewn  :  so  after  King 
John  lost  the  Norman  provinces,  the  two  kingdoms, 
with  their  people,  became  aliens  to  each  other,  as  hath 
been  already  shown,  and  as  Bracton  tells.  Those  two 

*  Eiley's  Placita,  152,  157. 
t  Molloy,   375. 


686  OPINIONS    OF    EMINENT    LAWYERS. 

great  precedents  from  well  vouched  history  and  record 
clearly  prove  that  a  natural  subject,  by  birthright,  may 
become  alien  by  such  matter,  ex  )io-st  facto,  and  thus 
doth  Sir  Edward  Coke  fail  in  his  argument.  Then,  as 
to  the  general  resolution  of  the  judges,  not  upon  the 
case  referred  to  them,  but  upon  a  case  which  might  by 
possibility  happen,  in  the  progress  of  time  and  chance: 
What  is  it  but  a  mere  petHio  principii,  begging  the  very 
question  which  ought  to  be  answered  ?  How  does  it 
stand  with  the  fundamental  principle  of  the  feudal  law, 
which  is  quoted  by  Craig,  the  profound  feudist,  unns  <t 
idem  dnorum  donv  niniin  homt  Ugins  csse  von  pot:st? 
How  does  it  consist  with  the  law  of  nature,  as  quoted 
by  our  Saviour,  no  man  can  serve  two  masters,  for  he 
will  hate  the  one  and  love  the  other!  How  does  it 
quadrate  with  the  general  law,  as  to  alienage  of  the 
European  nations  ?  Doth  it  not  tear  up  by  the  roots 
the  chief  grounds  of  all  those  laws,  in  respect  to  alien- 
age ?  Doth  it  not  pretend  to  out-argue  the  historical 
facts  which  have  been  quoted  as  to  the  loss  of  the  En* 
glish  dominion,  in  Scotland,  and  in  France?  Magis 
dozct,  qni  pnidentcr  i'lferrogat,  said  the  Lord  chancellor 
Egerton. 

Lord  Mansfield,  indeed,  in  delivering  the  opinion  of 
the  king's  bench  in  the  case  of  the  king  against  Cowle, 
with  regard  to  the  legal  state  of  Berwick,  whether  with- 
in the  jurisdiction  of  that  court,  and  reprobating  some 
obiter  opinions  in  the  case  of  Calvin,  remarked  of  Sir 
Edward  Coke,  "  that  he  was  very  fond  of  multiplying 
precedents  and  authorities,  and  in  order  to  illustrate  his 
subject,  was  apt,  besides  such  authorities  as  were  strict- 
ly applicable,  to  cite  other  cases  , which  were  not  applic- 
able to  the  particular  question  under  his  consideration." 


OP    THE    LAWS    OP    NATIONS.  687 

After  all  those  considerations,  can  it  be  doubted  with- 
in Westminster-hall  or  without,  whether  the  judges  re* 
gard  themselves  as  at  all  bound  by  manifest  error  ?  Lord 
Mansfield,  in  delivering  the  opinion  of  the  King's  bench 
in  the  case  of  the  king  against  Cowle,  rectified  two  mis- 
takes of  very  great  lawyers :  It  is  manifest,  said  his 
Lordship,  that  Coke  is  mistaken  in  sayirgj  generally, 
"  that  Berwick  was  not  governed  by  the  laws  of  Eng- 
land ;  for  in  criminal  matters  the  fact  is  undoubtedly 
otherwise ;"  and,  his  Lordship  added,  the  Lord  Chief 
Justice  Hale  is  clearly  mistaken  in  saying,  "that  Ber- 
wick sends  members  to  the  parliament  of  England  by 
charter  ;"  for  it  is  by  writ  of  summons  that  they  send 
them  thither,  in  consequence  of  their  being  a  borough. 
We  may  thus  perceive  that  the  vigilance  of  even  the 
greatest  lawyers  cannot  always  be  awake  ;  as  the  minds 
of  men,  according  to  Johnson's  remark,  cannot  be  con- 
stantly attentive  to  evanescent  actions.  We  are  told  by 
Sir  William  Blackstone,  that  an  appeal  lies  from  the 
colonies  to  the  king  and  council.  *  The  commentator 
seems  to  have  borrowed  this  form  of  words  from  Sir; 
Matthew  Hale's  History  of  the  Common  Law  ;  but  great 
names  and  high  authority  cannot  justify  such  inaccura- 
cy of  language  and  of  law,  The  appeal  is  to  the  king 
in  his  council*  Sir  Matthew  Hale  had  said,  that  na- 
turalization can  only  be  by  parliament,  and  not  other- 
wise, t  Naturalization,  saith  Blackstone,  cannot  be  per* 
formed  but  by  act  of  parliament,  copying  again  Sir  Mat- 
thew Hale,  though  without  using  his  idle  expression, 
and  not  otherwise  ;  but  such  general  positions  cannot 

•  Comment.  12th  edit.  1,  103. 

f  Vent.  Rep.  419-20.     That  position  of  Hale  is  true,  in  a  particular 
sense,  but  is  not  true  in  a  general  sense. 


OPINIONS    OP    EMINENT    LAWYERS. 

stand  against  known  facts,  as  well  as  juridical  policy  ; 
tind  it  was  overruled  by  the  court  of  king's  bench  in  the 
case  of  Campbell  and  Hall,  while  the  policy  of  consider- 
ing aliens,  conquered  in  war,  and  ceded  by  treaty,  as 
subjects,  was  confirmed  as  law.  The  whole  observations 
of  Sir  Edward  Coke,  in  support  or  explanation  of  the 
hypothetical  resolution  of  the  judges  before-mentioned, 
may  be  considered  as  mere'  mistakes,  and  extra-judicial 
inferences,  leading  to  little  information  and  to  mischiev- 
ous consequences.  We  all  know  the  fatal  effects  of 
double  allegiance  during  the  latter  periods  of  our  do- 
mestic history.*  "Indeed,"  saith  Blackstone, t  "the 
natural-born  subject  of  one  prince,  to  whom  he  owes  al- 
legiance, may  be  entangled  by  subjecting  himself  abso- 
lutely to  another;  but  it  is  his  own  act  that  brings  him- 
self into  those  difficulties  of  owingservice  to  two  masters ; 
and  it  is  unreasonable  that,  by  such  voluntary  act  of  his 
own^  he  should  be  able  at  pleasure  to  unloose  those 
bands  by  which  he  was  connected  to  his  natural  prince." 
But  I  have  done.  I  have  shown,  satisfactorily,  I 
trust,  in  what  manner  millions  of  subjects  may  become 
aliens,  by  mere  act  and  operation  of  law,  as  millions  of 
aliens,  by  the  same  operation  of  law,  may  become  sub- 
jects. 

February,  1,  1814.  G.  C. 

(1.)  The  opinion  of  Sir  Lloyd  Kenyon,  in  1783,  on 
i*ie  question,  whither  the  c/<>ods  imported  from  the  United 
States  must  pay  alien  duties;  and  are  subject  to  the  regu- 
lations of  the  ads  of  navigation. 

*  See  Foster's  Crown  Law;  184,  &c. 
t  Comment.  1,  370. 


OF    THE    LAW    OP    NATIONS.  689 

Case  for  the  opinion  of  Mr.  Kenyon,  states,  stat.  12 
Ch.  II.  ch.  18,  sec.  3,  8,  9. 

Quwere. — The  United  States  of  America,  having  now 
become  independent  of  this  realm,  and  their  plantations 
and  territories  in  America  not  now  deemed  as  to  his 
Majesty  belonging,  are  not  the  goods  imported  by  the 
people  thereof  in  ships  to  them  belonging,  to  be  consid- 
ered as  goods  imported  from  any  foreign  states  in  amity 
with  this  kingdom,  by  the  people  thereof,  in  ships  of 
their  country  ;  and  such  of  them  as  are  enumerated  in 
the  8th  section  preceding,  liable  to  the  aliens'  duty  im- 
posed by  the  9th  section? 

Qucere  2. — Are  such  goods  held  to  be  absolutely  pro- 
hibited to  be  imported,  under  the  pain  of  forfeiture,  by 
the  said  3d  section  of  said  law  1  For  as  the  case  now 
stands,  if  this  section  is  to  bear  that  construction,  the 
others,  and  it,  seem  irreconcilable, 

N.  B. — These  questions  are  put,  merely  to  know  how 
the  law  stands  upon  these  clauses,  without  any  regard 
to  any  orders  of  council  that  may  be  made  relative  to 
the  trade  and  commerce  of  North  America  under  the 
act  of  the  last  session  of  parliament  23  Geo.  III.  ch.  26. 
Sept.  30,  1783. 

I  think  that  the  fair  construction  of  the  act,  as  cir- 
cumstances now  stand,  is,  that  goods,  the  produce  of  the 
United  States,  may  be  imported  into  this  country  from 
the  place  of  their  growth,  upon  payment  of  the  duties 
payable  by  foreigners,  and  upon  no  other  terms. 

Chester,  Oct.  11,  1783.  LL.  KENYON. 


88 


690  OPINIONS    OP    EMINENT    LAWYERS. 

(2.)  The  opinion  of  Sir  William  Wynne,  in  which  the 
Attorney,  and  Solicitor-General,  Arden  and  Macdonald, 
concurred,  on  the  state  of  American  ships,  after  tke  inde- 
pendence of  the  United  States  *. 

I  do  not  think,  that  since  the  ratification  of  the  trea 
ty  of  peace,  by  which  the  United  States  of  America  are 
declared  to  be  free,  sovereign,  and  independent  states; 
and  his  Majesty  ^for  himself,  his  heirs,  and  successors, 
relinquished  all  claims  to  the  government,  propriety,  and 
territorial  rights  of  the  same,  a  register  could  be  legally 
granted  to  any  vessel  belonging  to  the  subjects  of  the 
said  States,  because  such  vessel  could  not  be  said  to  be- 
long to  any  colony  or  plantation  to  his  Majesty  belong- 
ing, or  in  his  possession,  or  to  be  wholly  owned  by  the 
people  of  the  said  colonies  or  plantations,  or  an;y  of  them, 
as  required  by  statute  7  and  8  William  III.  ch.  22  ;  nor 
could  it,  I  think,  be  truly  sworn,  that  no  foreigner  had 
any  part,  share,  or  interest  in  the  said  vessel,  as  subjects 
of  the  United  States  must,  I  conceive,  be  considered  as 
foreigners,  within  the  intent  and  meaning  of  the  said 
statute  of  King  William,  from  the  time  that  his  Majesty 
relinquished  his  claim  to  the  government  of  the  said 
states.  I  think  that  vessels  which  were  built  in  any  of 
the  British  colonies  of  America  before  the  commence- 
of  the  late  war  there,  and  which  are  lona  fide  the  prop- 
erty of  British  subjects,  are  without  doubt  qualified  to 
obtain  registers ;  but  I  do  not  see  how  such  vessels  as 
were  purchased  by  British  subjects  in  any  of  the  states 
which  were  declared  independent  by  the  late  treaty, 

*  I  was  assured  by  the  late  Mr.  Thomas  Bonne,  the  chairman  of  the 
board  of  customs,  that  the  Attorney  and  Solicitor-General  had  concurred 
with  Sir  William  Wynne. 


OF    THE    LAW    OP    NATIONS.  691 

since  the  beginning  of  the  year  1776,  can  be  legally  reg- 
istered as  British  ships ;  as,  from  the  beginning  of  the 
year  1776  to  the  conclusion  of  the  war,  all  trade  and  in- 
tercourse with  the  revolted  colonies  was  prohibited  by 
the  16th  George  the  Third,  ch.  5 ;  and  consequently  the 
purchase  of  a  ship  in  any  of  those  colonies  during  that 
period  by  a  British  subject  must,  I  conceive,  be  deemed 
illegal  and  void ;  and  a  ship  built  in  any  of  the  said 
states  since  the  ratification  of  the  treaty  must,  I  appre- 
hend, for  the  reasons  before  given,  be  deemed  a  foreign- 
built  ship.  Secondly,  I  think  it  is  advisable  for  the  of- 
ficers of  the  customs  to  seize  and  prosecute  vessels,  the 
property  of  subjects  of  the  United  States  of  America,  or 
which  were  built  and  purchased  by  British  subjects  in 
any  of  the  said  states  since  the  beginning  of  the  year 
1776,  though  registers  have  been  granted  for  them,  if 
they  are  found  trading  to,  or  from,  or  in,  any  British  is- 
land or  plantation,  or  to  any  part  of  this  kingdom,  or  oth- 
er his  Majesty's  dominions. 

N.  B.  A  vessel  built  in  the  American  states  during  the 
rebellion,  and  before  the  independence,  being  sworn  to 
be  the  property  of  his  Majesty's  subjects  residing  in  Ire- 
land, the  officers  of  Ireland  have  lately  granted  her  a 
register ;  but  upon  her  arrival  in  England,  on  a  voyage 
from  the  British  West  Indies  with  goods,  the  produce 
thereof,  she  was  seized  here,  and  is  claimed  in  the  ex- 
chequer ;  and  an  application  for  the  delivery  is  now  de- 
pending before  the  lords  of  the  treasury. 

W.  WYNNE. 

(3.)  2 lie  opinion  of  the  Attorney-General  Ardcn,  in 
1788,  on  the  American  trade. 

About  three  months  ago  a  brig  cleared  out  of  the  port 


692  OPINIONS    OF    EMINENT    LAWYERS. 

of  Kingston,  in  ballast,  for  Hispaniola,  from  thence  to 
proceed  to  New  York :  she  accordingly  proceeded  to 
Hispaniola,  and  as  she  was  designed  for  New  York,  the 
supercargo  on  board  her  ordered  the  captain  to  stop  at 
Turk's  Island  and  take  in  some  salt,  thinking  it  was  al- 
lowable, as  many  vessels  had  done,  and  are  still  doing 
the  same.  She  accordingly  proceeded  to  New  York 
with  the  salt  on  board  as  ballast,  where  she  landed  it, 
and  took  in  a  cargo  of  flour  for  Turk's  Island,  and  hav- 
ing landed  it  there,  proceeded  to  Cape  Francois,  where 
she  took  in  mill  timbers,  and  arrived  at  the  port  of 
Kingston  on  Wednesday  the  28th  instant. 

The  officers  of  the  customs  having  had  intimation  of 
the  above  circumstances,  seized  her,  alleging  that  the 
above  vessel  had  committed  a  breach  of  the  navigation- 
act.  Your  opinion  is  therefore  requested  on  the  part  of 
the  owners,  whether  or  not,  from  the  above  circumstan- 
ces, the  said  vessel  is  forfeited  and  liable  to  seizure  1  I 
think  this  a  hard  case  upon  the  owners ;  but  I  am  of 
opinion,  no  trade  can  be  conducted  between  the  United 
States  of  America  and  the  West  India  Islands,  amoilgst 
which  the  Bahama  Islands  are  included,  except  as  to 
such  articles  as  are  expressly  mentioned  in  the  King's 
late  proclamation,  and  to  those  only:  I  think  the  vessel 
is  liable  to  be  seized. 

P.  ARDEN. 

(4.)  Discussions  on  the  question,  "  ivlicther  inhabitants 
of  the  United  Slates,  lorn  there  before  the  independence, 
are,  on  coming  to  this  kingdom,  to  be  considered  as  natur- 
al-born subjects  ?"     By  a  Barrister. 
December  9,  1808. 

I  thought  the  affirmative  of  this  question  was  ac- 


OF    THE    LAW    OF    NATIONS.  693 

knowledged  by  all  lawyers.  One  authority,  it  seems  to 
me,  is  sufficient  to  support  it;  I  mean,  what  is  laid  down 
in  Calvin's  case,  on  the  supposition  that  the  crown  of 
Scotland  might  possibiy  be  separated  from  that  of  Eng- 
land :  upon  which  point  the  judges  resolved,  "That  all 
those  who  were  born  under  fine  natural  obedience,  while 
the  realms  were  united  under  one  sovereign,  should  re- 
main natural-born  subjects,  and  no  aliens ;  for  that  nat- 
uralization, due  and  vested  by  birthright,  cannot,  by  any 
separation  of  the  crowns  afterwards,  be  taken  away ;  nor 
he  that  was  by  judgment  of  law  a  natural  subject  at  the 
time  of  hi?  birth,  become  an  alien  by  such  matter,  ex 
post  facto,  and  in  that  case,  upon  such  an  accident,  our 
ante  natus  may  be  ad  fidem  utriusque  regis"  (7  Rep. 
27.  b.)  or,  to  apply  the  words  to  the  present  case,  our  ante 
natus ,  or  American  born  before  the  separation,  may  be 
ad  fidem  regie,  and  also  a  citizen  of  the  United  States*. 

Such  a  plain  and  explicit  authority  as  this  seems  to 
make  it  unnecessary  to  search  for  any  other;  however, 
objections  are  raised  to  the  claim  of  such  persons  to  be 
considered  as  British-born  subjects. 

"1st.  It  is  objected  that,  admitting  the  common  law  to 
be  as  laid  down  in  the  above  resolution,  there  are  cir- 
cumstances in  the  American  revolution  that  distinguish 
it  from  all  other  changes  of  sovereignty.  The  island  of 
Jamaica,  say  they,  may  be  ceded  by  the  king,  and  this 
being  done  without  the  consent  of  the  inhabitants,  there 
is  no  reason  why  they  should  lose  their  birthright  of 
British  subjects  ;  but  the  Americans,  a  whole  people  in 
arms,  claimed  to  be  released  from  the  English  govern- 

*  The  post  natus  there,  that  is,  one  born  after  the  union  with  Scot- 
land, corresponds  with  the  ante  natus  here,  that  is,  one  born  before  the 
separation  from  America. 


694  OPINIONS    OP    EMINENT    LAWYERS. 

ment,  and  the  king  at  the  peace  consented  to  give  up  his 
authority :  how  can  such  a  people  be  afterwards  consid- 
ered as  British  subjects ! 

2dly.  It  is  objected  that  there  are  certain  statutes 
and  public  acts  which  stand  in  the  way  of  the  above 
mentioned  common  law  principle  taking  effect. 

3dly.  It  is  even  objected  by  some,  that  no  principle 
of  the  common  law  can  support  so  unwarrantable  an  an- 
omaly as  that  the  same  persons  should  belong  to  two 
states,  and  that  admitting  them  to  levy  war  against  the 
king  in  the  character  of  American  subjects,  without  be- 
ing deemed  traitors,  and  then  .allowing  them  to  come  in- 
to his  kingdom  in  the  character  of  British  subjects,  is 
an  inconsistency  which  they  think  cannot  be  counten- 
anced by  the  law  of  England. 

To  the  first  of  these  objections  it  may  be  answered, 
that  the  peace  which  put  an  end  to  the  American  war 
ought  to  be  considered  as  putting  an  end  to  all  the  con- 
sequences that  might  be  imputed  to  the  Americans  by 
reason  of  their  rebellion ;  and,  indeed,  there  is  in  the 
definitive  treaty,  article  6,  an  express  provision,  that  no 
person  should,  on  account  of  the  war,  suffer  any  future 
loss  or  damage,  either  in  his  person,  liberty  or  proper- 

ty. 

Further,  we  should  inquire  what  the  Americans  could 
be  supposed  to  relinquish  by  making  war,  and  what  was 
the  result  ot  the  king  making  peace  ?  The  Americans 
could  not  mean  to  renounce  the  privileges  of  British 
subjects ;  because  they  rebelled  and  made  war  in  order 
to  get  something  they  had  not,  and  not  to  surrender 
what  they  possessed ;  it  was  to  release  themselves  from 
their  allegiance ;  but  no  man  can  throw  off  his  allegianco 


OP    THE    LAW    OP    NATIONS. 

at  his  own  option,  as  must  be  admitted  by  every  one, 
Did  the  king,  then,  make  peace  with  them,  in  order  to 
take  away  their  rights  as  British  subjects  1  But,  sure- 
ly, it  is  well  known  that  the  king  alone  cannot  take 
away  the  rights  of  a  British  subject  from  any  one.  In 
the  peace,  therefore,  made  with  the  Americans,  there 
seems  to  have  been  no  legal  competency  in  the  contract^ 
ing  parties  to  produce  the  effect  supposed,  of  making  the 
Americans  aliens.  This  must  appear  even  upon  gener- 
al principles  only  ;  it  will  presently  be  shewn  that  there 
was  not,  de  facto,  any  thing  in  the  treaty  upon  the  sub-^ 
ject  of  British  rights,  that  warrants  the  supposition  of 
their  being  taken  away  from  the  Americans. 

There  cannot,  in  a  judicial  point  of  view,  be  any  dif- 
ference between  the  supposed  case  of  cession  of  territory 
without  consent  of  the  inhabitants,  and  the  present  case 
of  cession  to  gratify  the  wishes  of  the  inhabitants.  The 
allegiance  in  both  cases  is  of  the  same  nature  ;  the  alle- 
giance is  not  to  the  soil,  but  to  the  person  of  the  King ; 
and  as  no  transfer  or  cession  of  the  soil  to  a  foreign 
prince  makes  any  alteration  in  the  allegiance  of  birth- 
right of  the  subject,  but  the  same  still  remains  in  the 
person  of  the  subject,  it  imports  nothing  whether  such 
cession  is  made  with  or  without  his  consent.  In  both 
cases  he  becomes  a  British-born  subject,  living  in  a  for- 
eign land,  and  liable  to  the  alteration  of  circumstances 
which  every  where  attends  a  British  subject  when  out 
of  the  king's  dominions.  ,  •. 

That  going  out  of  the  king's  dominions  under  the 
charge  of  criminality,  at  the  choice  of  the  party  and  by 
the  king's  consent,  does  not  make  a  British  subject  an 
alien,  is  evinced  from  the  old  law  of  sanctuary,  in  cases 
of  felony  and  abjuring  the  realm  to  save  the  felon's  life. 


696  OPINIONS    OF    EMINENT    LAWYERS. 

It  is  expressly  laid  down,  "Quid  cibjnratregnum,  amittit 
regnum,  sed  non  rcgem  ;  amitUit patriam,  scd  non  patrein 
pat-rice;  for  notwithstanding  the  abjuration,  he  oweth 
the  king  his  allegiance,  and  he  remaineth  within  the 
king's  protection ;  for  the  king  may  pardon  and  restore 
him  to  his  country  again.  Allegiance  is  a  quality  of  the 
mind,  and  not  confined  to  any  place."  (Calvin's  case,fol. 
9.  b.) 

As  to  what  is  now  said,  of  the  Americans  being  a 
whole  people  in  arms  demanding  to  be  released  from 
their  allegiance,  it  should  be  recollected  that  the  lan- 
guage in  this  country  during  the  whole  of  the  American 
war  was  different:  it  was  said,  "the  thinking  part,  those 
who  had  property  and  character,"  and  some  said,  "  the 
majority  of  the  people,"  were  against  the  violent 
measures  which  were  driven  on  by  an  active  minority 
of  agitators.  Is  it  then  at  all  reasonable  to  infer  upon 
those  persons  who  were  friendly  to  this  country,  the 
consequences  of  such  resistance  and  rebellion?  Indeed 
there  is  nothing  so  unjust  in  the  law  of  England.  The 
law  does  not  consider  the  king's  subjects  in  a  mass,  un- 
der the  name  of  the  people,  in  any  number  more  or  less. 
They  cannot  be  considered  in  a  legal  view,  but  as  indi- 
viduals ;  what  is  the  law  respecting  one,  is  the  law  re- 
specting one  million,  and  every  man's  case  stands  upon 
its  own  ground  and  circumstances.  It  is,  therefore,  ut- 
terly inconsistent  with  the  law,  to  impute  to  the  Amer- 
icans any  disfranchisement  as  a  people:  if  there  is  any 
such  extinguishment  of  rights,  it  must  be  in  some  indi- 
vidual ;  and  if  it  is  not  to  be  discovered  in  one,  it  is  not 

to  be  found  in  a  million. 

• 

Secondly,  as  to  the  statutes  and  public  acts  which  are 
supposed  to  stand  in  the  way  of  the  above  mentioned 


OF    fHE    LAW    OF    NATIONS.  69? 

principle  of  common  law:  the  principal  statute  which,  I 
believe, is  relied  upon,  is  statute  22  Geo.  III.  c.  46.  This 
is  a  parliamentary  authority,  enabling  his  Majesty  to 
make  peace  with  America ;  an  authority  which  had  be- 
come necessary,  because  the  parliament  had  passed  some 
acts  of  prohibition  and  penalty  which  might  stand  in 
the  Way  of  peace,  as  stat.  16  Geo.  III.  c.  5.  and  stat.  17. 
Geo.  III.  c.  7.*  for  prohibiting  trade  and  intercourse 
with  America,  and  for  authorising  hostilities  against  the 
rebels.  The  American  war  having  thus  become  a  par- 
liamentary measure,  it  required  the  concurrence  of  par- 
liament to  make  peace,  which  in  ordinary  cases  belongs 
to  the  king  alone. 

Accordingly,  stat.  22  Geo.  III.  c.  46.  authorises  the 
king  to  conclude  "a  peace  or  truce  with  the  said  colo- 
nies or  plantations,  or  any  of  them;"  and  that  the  above 
mentioned  prohibitory  acts  might  not  be  an  impediment 
to  the  progress  of  negociation,  the  statute  authorizes  the 
king  "  by  letters  patent^  under  the  great  seal,  to  repeal, 
annul,  and  make  void,  or  suspend  the  operation  or  effect 
of  any  act,  or  acts  of  parliament,  which  relate  to  the  said 
colonies  or  plantations;"  meaning  under  these  general 
words,  most  probably,  the  above  mentioned  prohibitory 
acts,  and  none  other: 

There  might  be  another  reason  for  an  act  of  parlia- 
mentj  namely  j  some  hesitation  as  to  the  persons  with 
whom  the  king's  commissioners  were  to  treat,  whether 
they  had  competency :  therefore,  the  act  speaks  of  treat- 
ing with  commissioners  named  by  the  colonies,  with  any 
body  or  bodies  politic,  with  any  assembly  or  assemblies, 
or  description  of  men,  or  with  any  person  or  persons 
whatsoever. 

*  These  acts  were  afterwards  repealed  by  stat.  23  Geo.  III.  c.  26. 
89 


698  OPINIONS    OF    EMINENT    LAWYERS. 

Such  are  the  provisions  of  the  act  for  making  peace 
•with  America,  which  is  supposed  to  give  authority  to 
the  king  to  take  away  the  rights  of  British-born  sub- 
jects from  the  inhabitants  of  the  United  States,  and  make 
them  aliens,  I  can  only  ask  those  who  allege  this  act, 
to  shew  us  by  what  words,  or  by  what  construction  of 
words,  such  power  is  given  to,  or  is  intimated  to  reside 
in  the  king  ?  And  with  such  an  appeal  I  dismiss  this 
statute. 

The  next  document  that  occurs,  in  course  of  time,  is 
the  definitive  treaty  made  in  September,  1783,  in  pur- 
suance of  such  parliamentary  authority.  In  the  first 
article  of  this  treaty,  the  king  "  acknowledges  the  Uni- 
ted States  (naming  the  several  colonies)  to  be  free,  sov- 
ereign, and  independent  states ;  and  for  himself,  his 
heirs,  and  successors,  relinquishes  all  claims  to  the  gov- 
ernment, propriety,  and  territorial  rights  of  the  same, 
and  every  part  thereof."  This  leading  and  general  pro- 
vision'being  made,  there  follow  in  the  treaty  some  few 
subsidiary  stipulations,  all  tending  to  give  effect  to  the 
above  relinquishment  of  sovereignty,  and  to  the  con- 
firmation of  peace  and  amity.  After  reading  these,  I 
must  again  ask  the  like  question  as  before,  Avhere  is  the 
provision  in  the  treaty  for  doing  that  which  I  have  not 
yet  discovered  the  king  was  authorised  by  the  act  to  do  1 
It  appears  from  reading  the  treaty,  that  the  king  has 
not,  de  facto,  done  that  which  he  was  not  enabled  by 
the  act,  nor  was  otherwise  authorised,  cle  jure,  to  do. 
He  has  not  taken  away  the  rights  of  British-born  sub- 
jects residing  in  the  United  States,  nor  has  he  renounced 
the  allegiance  of  his  natural-born  subjects  residing  there ', 
he  has  acknowledged  the  colonies  to  be  free  and  inde- 
pendent, and  relinquished  all  sovereignty  over  their  ter- 


OP    THE    LAW    OP    NATIONS. 


699 


ritory:  in  doing  so,  he  has  departed  with  some  of  his 
own  royal  prerogative,  and  has  circumscribed  the  claims 
he  before  had  on  the  allegiance  of  his  natural-born  sub- 
jects residing  there.  This  was  his  to  give,  and  he  has 
given  it,  but  the  rights  of  British  subjects  the  king  had 
no  power  to  take  away  ;  nor  was  it  a  time  for  taking, 
but  a  time  for  giving  and  conceding:  the  Americans 
meant  to  add  to  what  they  already  enjoyed.  They 
would  have  felt  it  an  injury,  if  it  had  been  proposed  to 
them  no  longer  to  be  deemed  British-born  subjects;  and 
recollecting,  as  we  must,  the  feeling  and  speculations  in 
this  country,  looking  forward,  as  many  did,  to  the  colo- 
nists quarrelling  amongst  themselves  and  coming  back, 
all  or  some  of  them,  to  their  old  connection  with  us,  we 
may  be  sure  no  one  in  this  kingdom  would  have  ven- 
tured to  propose  that  they  should  be  stripped  of  the 
character  of  British  subjects  to  which  they  were  born, 
and  be  rendered  aliens  under  circumstances  which  would 
indicate  on  our  part  a  disposition  to  perpetual  estrange- 
ment and  enmity. 

So  far  from  this,  I  think,  there  is  even  in  the  treaty 
an  express  saving  of  the  rights  of  a  British-born  sub- 
ject, among  other  rights  arid  claims.  In  article  6,  it  is 
provided,  "  that  no  person  shall  on  that  account,  (mean- 
ing the  preceding  war)  suffer  any  future  loss  or  damage, 
either  in  person,  liberty,  or  property."  If  an  American 
comes  to  this  kingdom  and  is  treated  as  an  alien  under 
the  alien  act,  he  assuradly  suffers  in  his  person  and 
liberty ;  and  such  suffering  must  be  on  account  of  the 
war,  which  those  ought  to  allow  who  make  the  first  of 
the  above  objections ;  he  surely  cannot  be  said  to  suffer 
by  the  peace,  which  was  meant  for  conferring  advantages, 
not  for  taking  them  away, 


700  OPINIONS    OP    EMINENT    LAWYERS. 

The  next  document,  where  we  are  to  look  for  some- 
thing which  is  to  control  the  above  principle  of  the 
common  law,  is  the  commercial  treaty,  19th  of  Novem- 
ber, 1794.  But  in  this  I  can  find  nothing  to  the  effect 
supposed,  and  I  must  put  the  like  interrogation  as  before  ; 
yet  with  still  less  expectation  of  an  answer,  because,  in 
this  treaty,  we  have  something  more  than  negative 
evidence  we  have  here  express  testimony,  that  the 
rights  of  British-born  subjects  were  intended  to  be  con- 
tinued to  the  Americans  by  the  first  treaty,  and  that  it 
was  intended  by  the  commercial  treaty  to  give  them  a 
longer  continuance  to  their  posterity.  By  the  9th  article 
it  appears  that  the  American  citizens  then  held  lands 
in  the  dominions  of  his  Majesty ;  but  they  must  be 
British-born  subjects  to  hold  lands,  and  not  aliens.  It 
appears,  therefore,  that  his  Majesty,  in  November,  1794, 
eleven  years  after  the  treaty  of  peace,  recognized  the 
citizens  of  the  United  States  as  British-born  subjects. — 
I  lay  this  stress  upon  the  declaration  of  the  fact,  because 
I  cannot  suppose  a  public  and  solemn  instrument,  as 
this  treaty  is,  would  speak  of  lands  being  holden  in  any 
other  sense  than  that  of  being  lawfully  holden. 

The  framers  of  the  treaty  certainly  understood  it  in 
that  sense,  because  the  provision  they  intended  to  make 
was  to  fortify  the  titles  to  these  lands  in  future  times, 
when  certainly  the  title  to  them  would  become  not  law- 
ful. They  foresaw  that  although  the  present  possessors 
were  British -born  subjects,  their  descendents,  born  in  the 
United  States,  out  of  the  king's  allegiance,  would  be 
aliens.*  It  was  accordingly  stipulated,  '<that  neither 
they  nor  their  heirs  or  assigns  shall,  so  far  as  may  respect 

*  They  might  for  their  sons,  and  grandsons,  have  the  benefit  of  stat. 
7  Ann.  c.  5.  stat.  4  Geo.  II.  c.  21.  and  stat.  13  Q-eo.  III.  c.  21.  but  for 
ater  desc  endents,  they  needed  a  new  provision. 


OF    THE    LAW    OP    NATIONS.  701 

the  said  lands,  and  the  legal  remedies  incident  thereto, 
be  regarded  as  aliens."  If  it  should  be  objected,  that  the 
provision  here  speaks  as  well  of  the  present  possessor  as 
the  heirs,  the  answer  is,  that  it  would  not  have  been  so 
well  worded  if  the  present  possessor  had  not  been  named ; 
and  if  he  had  not  been  named  as  well  as  the  heirs,  it 
might  have  been  construed  into  an  implication  that  he 
was  to  be  excluded  from  the  protection  intended  for  the 
heirs  only. 

Another  more  probable  reason  for  this  stipulation  was 
to  bind  the  two  nations,  not  to  make  any  disqualifying 
law,  that  by  rendering  the  others  aliens,  •  would  disable 
them  from  holding  lands.  This  future  possibility,  with- 
out any  doubt  about  the  then  present  state  of  the  law, 
might  be  sufficient  reason  for  such  a  cautionary  provis- 
ion, 

Whatever  observation  may  be  indulged  on  this  part 
of  the  article,  the  averment  in  the  beginning  of  it  re- 
mains unaffected ;  and  this  averment,  of  Americans  be- 
ing British-born  subjects,  is  again  published,  ratified, 
and  confirmed  by  parliament,  in  stat.  37  Geo.  III.  c.  97. 
sect.  24,  25.  which  was  made  for  carrying  into  execu- 
tion the  treaty.  This  article  of  the  treaty  is  there  re- 
cited at  length,  and  the  two  clauses,  sect.  24.  and  25. 
purport  to  carry  it  into  execution. 

If  there  is  any  thing  in  this  statute  to  control  the  ef- 
fect of  the  common  law  position  so  often  alluded  to,  I 
think  it  should  be  in  these  two  clauses;  yet  I  have  not 
been  able  to  discover  such  a  meaning,  and  I  must  leave 
it  to  be  demonstrated  by  those  who  have  found  it  out. 
The  clauses  appear  to  me  to  have  something  particular 
in  them ;  they  omit  the  naming  of  heirs,  which  was  the 
enactment  most  wanted,  and  they  supply  this  omission 


702  OPINIONS    OP    EMINENT    LAWYERS. 

• 

by  a  winding  wordiness  in  the  proviso,  that  is  not  easily 
evolved.  There  is  a  grudging  caution  in  the  whole  con- 
ception of  these  clauses  :  I  believe  the  framers  of  them 
did  not  like  the  matter  of  them,  being  unwilling  to  bear 
this  parliamentary  testimony  to  the  legal  conclusion, 
that  ante  nail  Americans  are  British-born  subjects,so  as 
to  hold  lands. 

As  to  the  third  objection,  the  anomaly  and  inconsist- 
ency of  Americans  being  citizens  of  the  United  States 
while  there,  and  being  British-born  subjects  when  here; 
this  is  not  a  novelty,  nor  is  it  peculiar  to  Americans.  It 
may  happen  to  any  British  subject,  and  it  is  allowable 
in  our  law,  which  recognizes  this  double  character  of  a 
person  being,  as  was  before  shewn,  ad  Julcm  iitriusqiie 
reijis*.  British  subjects  may  voluntarily  put  them- 
selves in  such  a  situation ;  it  is  part  of  the  privileges  of 
a  British  subject  to  be  at  liberty  so  to  do.  Have  we  not 
British  subjects  who  are  naturalized  in  Holland,  in  Rus- 
sia, in  Hamburgh,  in  various  places  on  the  continent  of 
Europe  ?  Do  not  British  subjects  become  citizens  of 
the  United  States?  Some  persons  are  born  to  such 
double  character  ;  children  and  grandchildren,  born  of 
British  parents  in  foreign  countries,  are  British-born 
subjects,  yet  these,  no  doubt,  by  the  laws  of  the  respect- 
ive foreign  countries,  are  also  deemed  natural-born  sub- 
jects there. 

Thus  far  of  individuals;  the  like  may  happen  to  a 
whole  community,  a  whole  people.  When  the  king  re- 
linquished his  sovereignty  over  the  United  States,  the 
land  became  foreign,  while  the  inhabitants  remained  all 
British  subjects.  When  the  king's  forces  took  Surinam 

*  Vid.  ant.  pa.  693. 


OP    THE    LAW    OF    NATIONS.  703 

and  the  other  Dutch  colonies,  the  land  became  British, 
but  tha  inhabitants  still  continued  foreigners.  The  per- 
sonal character  of  alien,  with  which  the  Dutch  colonists 
were  born,  still  remains  to  them,  and  the  indelible  char- 
acter of  British  subject,  with  which  the  Americans  were 
born,  remained  to  them  after  their  country  was  made 
foreign. 

I  am  aware  of  the  difficulties  which  such  persons  may 
labor  under,  with  those  double  claims  of  allegiance  upon 
them.  Such  difficulties  must  be  got  through  as  circum- 
stances will  allow,  and  consideration  should  be  had  for 
the  parties  according  to  their  respective  situations ;  more 
especially  with  a  distinction  between  those  who  brought 
themselves  into  such  embarrassing  situation  voluntarily, 
and  those  who  were  born  in  it;  and  more  particularly 
with  regard  to  the  difference  between  that  which  is  the 
act  of  private  individuals,  and  that  which  is  a  .national 
proceeding,  involving  a  whole  people.  In  weighing  such 
circumstances,  it  will  soon  appear  that  these  are  all  ob- 
jections which  relate  more  to  facts  than  to  the  law  of 
the  case ;  they  are  inconveniences  in  the  way  of  full  ex- 
ercise and  enjoyment  of  the  rights  in  question,  but  de- 
tract nothing  from'the  rights  themselves.  On  the  one 
hand,  the  king  cannot  reckon  upon  the  full  and  absolute 
obedience  of  such  persons,  because  they  owe  another 
fealty  besides  that  due  to  him  ;  on  the  other  hand,  the 
subject  cannot  hare  full  enjoyment  of  his  British  rights. 
Indeed,  it  will  be  found,  he  will  have  as  little  of  his  own 
rights  as  the  king  has  of  his  obedience ;  for  if  the  rights 
of  a  British  subject  are  examined,  it  will  appear  that  al- 
most all  of  them  depend  on  a  residence  in  the  king's  do- 
minions, and  that  when  he  removes  into  a  foreign  coun- 
try, as  they  are  without  exercise  or  application,  they 
are  suspended  and  have  no  apparent  existence. 


?04  OPINIONS    OP    EMINENT    LAWYERS. 

I  have  heard  it  asked,  if  the  king  was  to  send  his  writ 
to  command  the  attendance  of  Mr.  Jefferson  in  this  king- 
dom?— I  agree  he  would  not  come;  but  that  would  be 
no  test  of  the  law  upon  the  subject ;  it  is  an  inconven4 
ience  in  point  of  fact;  The  laW,  in  the  execution  of  it, 
is  liable  to  many  obstructions  which  prevail,  and  yet  the 
judgment  of  law  is  not  deemed  thereby  invalidated.  If 
the  king  had  sent  such  a  writ  to  General  Washington, 
at  the  head  of  his  army,  I  suppose  he  would  riot  have 
obeyed  it,  yet  no  one  would  have  deemed  it  a  demon- 
stration that  he  was  not  amenable  to  our  law  :  Why 
then  should  a  pacific  refusal  from  Mr.  Jefferson  have  iri 
it  more  of  the  force  of  a  legal  argument  ?  And  yet,  I 
think,  Mr.  Jefferson  might  decline  obedience  to  such  a 
command,  admit  himself  to  be  a  British  subject,  and 
have  the  law  on  his  side  too. 

Mr.  Jefferson  might  answer  such  a  call  upon  him  by 
saying,  true  it  is,  I  was  born  a  British  subject,  and  I  my- 
self have  done  nothing  to  put  off  that  character.  But 
your  Majesty  has,  by  the  treaty  of  1783,  relinquished 
all  sovereignty  over  the  United  States;  and  as  your 
Majesty  and  all  the  world  kno.w,  it  was  thereby  intend- 
ed that  your  subjects  here  should  form  a  government  of 
their  own  ;  we  have  so  done,  under  the  faith  of  your 
Majesty's  grant  and  covenant ;  and  it  has  happened  in 
the  progress  of  events  that  I  am  now  exercising  an  of- 
fice in  that  government  which  necessarily  requires  my 
presence  here.  I  am  brought  into  this  situation  in  con- 
sequence of  an  act  of  your  Majesty,  by  which  it  was  de- 
signed that  myself,  or  some  other  of  your  subjects  here, 
should  come  into  such  a  situation :  being  so  circum- 
stanced, I  am  no  longer  at  liberty  to  make  a  choice  of 
my  own.  There  is  a  moral  and  political  necessity,  that 


OP    THE    LAW    OF    NATIONS.  705 

.makes  it  impossible,  at  present,  to  obey  the  commands 
of  your  Majesty  ;  I  pray  your  Majesty's  forbearance  ;  1 
plead  your  Majesty's  own  covenant  and  good  faith :  and 
I  rely  upon  them  as  a  justification,  or  excuse,  for  my  dis- 
obedience. 

• 

Surely  this  would  be  a  good  plea  in  point  of  law,  and 
Mr.  Jefferson  might  have  the  benefit  of  his  American 
citizenship,  in  perfect  compatibility  with  the  claims  up- 
on him  from  British  allegiance.  Such  scintilla  juris  in 
the  king  of  England,  can,  I  should  think,  raise  110  flame 
in  any  American  bosom. 

There  are  much  stronger  cases  of  a  similar  kind  that 
have  never  startled  any  one  with  their  anomaly  or  in- 
compatibility. Mr.  J.  and  other  American  citizens  have 
entered  into  their  offices,  their  engagements,  and  their 
situations,  under  the  faith  of  the  king  and  the  parlia- 
ment. But  how  many  British  subjects  have  become  cit- 
izens, burghers,  burgomasters,  and  have  taken  other  of- 
fices in  foreign  countries,  voluntarily,  upon  speculations 
of  private  interest,  arid  from  various  inducements,  all  of 
them  of  an  individual  and  personal  nature.  If  such  per- 
sons had  been  called  upon  by  the  king's  Writ,  they  would 
riot  have"  had  so  good  a  plea  as  Mr.  J.  and  yet,  probably- 
none  of  them  would  have  moved  from  their  station. 
Was  it  ever  heard  that  such  persons,  when  returned  to 
this  kingdom,  were  deemed  to  be  less  of  British  subjects, 
because  they  had  lived  and  risen  to  public  stations  in 
foreign  states  1  No,  certainly,  they  are  considered  as 
having  exercised  the  liberty  belonging  to  all  British  sub- 
jects, respecting  whom  there  is  no  restraint  but  the  con- 
siderations of  prudence  which  are  suggested  by  the  oc- 
casion ;  and  yet  none  of  these  volunteers  in  foreign  ser- 
vice have  so  much  to  say  for  themselves  as  an  American 
90 


706  OPINIONS    OF    EMINENT    LAWYERS. 

citizen  who  chooses  to  leave  the  United  States  and  to 
spend  the  remainder  of  his  days  in  this  kingdom.  The 
local  allegiance  he  has  acknowledged  to  a  foreign  gov- 
ernment is  recognized  by  the  king  and  parliament :  he 
has  never  lived  wholly  out  of  the  view  of  the  sovereign 
power  under  which  he  was  born ;  and  the  language,  law, 
and  manners  he  has  been  conversant  with  during  the 
whole  of  his  residence  in  the  ceded  states  of  America, 
restore  him  to  this  kingdom,  and  to  his  original  and  nat- 
ural allegiance,  unchanged,  and  quite  British.  Why 
should  a  person  of  this  description,  an  American  citizen, 
be  the  only  one  rejected  and  excluded  from  the  rights 
of  a  British  subject,  because  he  owes  a  local  allegiance 
in  another  country  ? 

There  is  a  parliamentary  record,  testifying  instances 
of  such  contumacy.  In  stat.  14  &  15  Henry  VIII.  c.  4. 
it  is  recited,  that  Englishmen  living  beyond  sea,  and  be- 
coming subjects  to  foreign  princes  and  lords,  "  will  obey 
to  none  authority  under  the  great  seal  of  England;  but 
they  give  themselves  over  to  the  protection  and  defence 
of  those  outward  princes  to  whom  they  be  sworn  sub- 
jects." It  is  herein  recorded  by  parliament  that  Eng- 
lishmen thus  expatriated  themselves  and  refused  obedi- 
ence to  the  king's  writ;  and  yet  no  declaration  or  enact- 
ment was  made  by  parliament  on  that  point  of  disobedi- 
ence, so  as  to  disfranchise  them,  and  make  them  aliens ; 
but  there  is  by  that  act  imposed  on  them  merely  a  pen- 
alty in  one  particular  article,  that  of  importation  of  goods. 
Such  persons,  it  seems,  had  abused  their  privilege  as 
Englishmen,  and  had  lent  their  name  to  cover  the  goods 
of  persons  of  the  foreign  country  where  they  resided. 
To  put  an  end  to  such  impositions,  they  were  in  future 
to  pay  alien  duties,  as  the  subjects  of  the  country  where 
they  resided. 


OP    THE    LAW    OP    NATIONS.  707 

Compare  these  recusant  absentees  alluded  to  in  the 
statute,  with  the  American  now  in  question.  The  form- 
er voluntarily  leave  the  kingdom,  make  themselves  sub- 
jects of  a  foreign  state,  refuse  obedience  to  the  king's 
writ,  abuse  their  privilege  of  natural-born  subjects  to  de- 
fraud the  revenue.  The  latter  is  born  under  the  king's 
allegiance,  in  a  country  which  the  king  has  since  ceded 
and  made  a  foreign  land.  It  does  not  appear,  this  par- 
ticular person  had  any  concern  in  the  public  affairs  of 
the  country,  till  it  was  so  settled  by  his  Majesty's  sol- 
emn covenant  and  grant.  He  chooses  in  the  latter  part 
of  his  life  "  to  go  home/'  (for  such  is  the  phrase  in  the 
United  States  to  the  present  moment,)  and  end  his  days 
here.  No  act  of  recusancy  or  contumacy  is  imputed  to 
him. 

Now  compare  the  consequences  in  the  two  cases:  the 
former,  though  solemnly  noticed  and  censured  by  parlia- 
ment, is  not  marked  by  any  penalty  of  disfranchisement, 
though  thus  alienated  from  his  native  country,  but  is 
merely  mulct  in  the  payment  of  alien  duties ;  the  latter 
is  told  he  is  an  alien  and  has  lost  his  right  of  a  natural- 
born  subject. 

The  further  we  go,  the  more  we  find  of  precedent  and 
principle  against  such  a  sentence  of  disfranchisement. 

These  are  the  answers  which,  I  think,  may  be  made 
to  the  above  three  objections  *.  These  answers  seem 
to  me  sufficient,  and  nothing  further  need  be  done  but 
to  come  round  to  the  place  from  whence  we  set  out, 
namely,  the  position  of  law  resolved  by  all  the  judges  in 

*  I  recollect  another  objection  :  how  is  the  question  of  American  citi- 
zens to  be  tried  ?  I  see  this  was  an  objection  in  Calvin's  case :  it  is  the 
second  of  the  five  inconveniencies,  and  it  is  answered  in  the  Report,  fol. 
26,  b. 


708  OPINIONS    OF    EMINENT    LAWYERS. 

Calvin's  case,  according  to  which  the  ante  nati  in  the 
United  States  continue  still  British-born  subjects,  and, 
coming  here,  are  entitled  to  all  the  privileges  of  such. 
The  plain  and  explicit  principle  laid  down  on  that  occa- 
sion, has,  I  suppose,  governed  the  minds  of  lawyers, 
whenever  they  have  been  consulted  on  the  application 
of  it  to  American  citizens.  .It  is  owing,  no  doubt,  to 
this  uniformity  of  opinion,  that  the  question  has  never, 
been  brought  to  argument  in  any  court.  During  the 
space  of  25  years,  since  the  independence  of  America 
was  declared,  there  has  never  been  so.  much  doubt  on 
this  claim  as  for  any  lawyer  to  advise  a  contest  by  suit. 
I  deem  this  want  of  judicial  determination,  coupled  with 
what  follows,  to  be  a  great  testimony  for  the  affirmative 
of  the  question. 

In  the  mean  time  lawyers  have  been  consulted,  no 
doubt,  very  frequently,  and  written  opinions  are  in  the 
possession  of  many.  I  have  been  able  to  obtain  a  sight 
only  of  two.  I  have  seen  an  opinion  of  Mr.  Kenyon,  in 
1784,  where  he  declares  in  few  words  and  without  hes- 
itation or  qualification,  that  American  citizens  may  hold 
lands  as  British-born  subjects.  I  have  seen  an  opinion 
of  the  attorney-general  Macdonald,  in  Feb.  1789,  that 
engaging  American  seamen  for  foreign  service  should  be 
prosecuted  as  the  offence  of  enticing  British  seamen  into 
a  foreign  service  :  the  prosecution  was  commenced,  the 
indictment  found,  but  the  attorney-general  entered  a 
noli  pro-sequi  upon  the  party  paying  the  costs. 

Among  the  opinions  of  lawyers,  I  must  mention  what 
I  received  from  Mr. ,  to  whom  I  sent  a  state- 
ment of  the  case,  with  the  view  of  learning  whether  any 
alteration  had  taken  place  in  the  opinions  of  lawyers  of 
late  days  :  I  knew  I  should  have  from  him  the  current 


OF    THE    LAW    OF    NATIONS.  709 

opinion  of  Westminster-hall ;  he  at  once  wrote  with  pen- 
cil on  the  back  of  the  paper,  that  such  persons  are  Brit- 
ish subjects ;  he  seemed  to  answer  it  as  if  it  was  as  known 
and  as  established  as  that  the  eldest  son  is  the  heir  in 
fee  simple. 

I  made  inquiry  at  the  Custom-house,  where,  I  was 
told,  I  might  possibly  find  notes  of  some  decisions  at  ni- 
si prius  in  the  Exchequer,  which  conveyed  the  chief 
baron's  opinion,  that  a  domiciliation  in  America  took 
away  the  British  character  from  a  seaman  employed  in 
navigating  a  British  ship.  The  solicitor  said  he  knew 
of  no  such  cases  nor  of  such  opinion ;  on  the  contrary, 
he  said,  it  was  the  usage  of  the  Custom-house  to  consid- 
er the  ante  nail  in  America  as  British-born  subjects,  and 
they  were  registered  as  owners  of  British  ships  :  he  in- 
formed me  also  of  the  above  proseccution  for  enticing 
British  seamen,  and  he  gave  me  copies  of  the  papers. 

These  authorities  from  the  opinions  of  lawyers,  and 
the  practice  of  a  public  office,  cannot  be  closed  better 
than  by  an  authority  superior  to  all  of  them ;  I  mean 
what  has  been  already  mentioned,  the  9th  article  of  the 
treaty  of  commerce,  and  sect.  24.  and  25.  of  stat.  37 
Geo.  III.  c.  97.  where  there  is  a  solemn  declaration  by 
the  king  and  the  parliament,  that  American  citizens  did 
then  hold  lands  ;  which  they  could  not  lawfully  do,  un- 
less they  were  deemed  British  natural-born  subjects. 

After  such  authorities,  there  does  not  seem  to  me  any 
need  to  add  a  word  more. 

Dec.  9,  1808. 

December  15,  1808. 

Since  writing  the  above,  I  have  been  told  that  the 
subject  of  ante  nati  is  no  part  of  the  present  question, 
and  what  the  objectors  mean  to  urge  is  as  follows :  First, 


710  OPINIONS    OF    EMINENT    LAWYERS. 

That  the  Americans,  at  the  time  of  making  stat.  22  Geo. 
III.  c.  46.  were  in  a  state  of  legitimate  war,  bearing  the 
character  of  foreign  enemies,  and  not  that  of  rebels. 
This  is  implied  in  the  passing  of  such  an  act,  and  in  the 
wording  of  it : — Peace  and  Truce — was  not  the  language 
to  hold  to  rebels ;  nor  did  the  king  need  the  authority 
of  an  act  of  parliament  to  proceed  with  traitors  :  the  act 
has  no  object,  if  the  Americans  are  not  admitted  to  be 
foreigners  in  this  transaction,  Secondly,  That  after  the 
peace  made,  it  still  remained  for  Americans,  if  they 
chose,  to  adhere  to  the  British  character  ^  and  it  is  not 
meant  to  deny,  that  prima  facie,  the  Americans  are  to 
be  deemed  British  subjects.  But  those  who  domiciliated 
themselves  in  the  United  States,  showed  thereby  a  de- 
termination to  become  American  citizens;  and  after  such 
choice,  they  cease  to  be  British  subjects,  and  cannot  re- 
sume that  character. 

If  I  have  not  stated  the  above  points  quite  correctly, 
nor  with  all  the  advantage  that  belongs  to  them,  I  hope 
I  shall  be  pardoned  by  those  who  made  them,  and  who 
rely  upon  them  :  they  were  communicated  to  me  in  a 
rapid  conversation  only  ;  for  nothing  on  that  side  of  the 
question  has  been  put  into  writing :  I  have  done  my 
best  to  retain  what  I  heard  and  to  state  it  fairly  and 
fully. 

I  am  totally  at  a  loss  to  comprehend,  at  what  period 
of  the  war,  or  by  what  modification  of  carrying  it  on, 
either  on  one  side  or  the  other,  or  by  what  events  or 
circumstances,  that  which  was  once  rebellion  ceased  to 
be  so,  and  the  traitors  became  changed  into  aliens  wag- 
ing legitimate  foreign  war.  As  to  the  words  peace  and 
truce,  I  do  not  understand  why  they  are  not  as  applica- 
ble to  war  coupled  with  rebellion,  as  to  war  not  coupled 


OP    THE    LAW    OP    NATIONS.  711 

with  it.  For  war  is  still  war,  whatever  may  give  rise  to  it; 
and  I  do  not  see  why  the  war  of  rebels  is  not  legitimate, 
qnatenus  war,  and  therefore  needing  every  consideration 
that  attends  all  wars.  Surely,  in  the  time  of  Charles  I. 
there  were  treaties  and  truces  and  peace  too ;  there  was 
a  peace  fcr  a  short  time  I  think  in  1645,  and  yet,  the 
Lord-chancellor  Clarendon  entitled  the  narrative  of  these 
transactions,  a  "History  of  the'  Rebellion ;"  and  no  man 
has  ever  doubted,  be  he  law -man,  or  layman,  that  the 
war  levied  against  Charles  I.  was  treason  and  rebellion; 
although  it  was  attended  with  success,  and  could  com- 
mand names,  and  although  many  amongst  us  have  long 
agreed  in  applying  to  it  the  qualified  appellation  of  civil 

war. 

As  to  the  necessity  of  making  such  act  of  parliament, 

and  giving  thereby  power  to  the  king  to  make  peace 
and  truce,  because  the  Americans  were  become  alien  en- 
emies, and  ceased  to  be  traitors  and  rebels ;  it  is  very 
curious  that  a  different  reason  for  making  it  was  given 
by  the  makers  of  the  act ;  that  reason  is  recorded  in  the 
parliamentary  debates  of  the  time ;  and  the  reason  so 
given,  seems  to  me  to  supersede  the  necessity  of  invent- 
ing any  new  one  like  the  present. 

The  bill  was  called  "the  Truce  Bill,"  and  was  brought 
into  the  house  of  commons,  on  February  2S-,  1782,  by 
the  attorney-general  Wallace.  It  does  not  appear  that 
it  became  a  subject  of  debate  in  any  of  its  stages ;  the 
nation  and  parliament  were  bent  upon  peace,  and  any 
measure  tending  to  bring  it  about  was  too  welcome  to 
be  questioned  or  criticised. — [See  Debrett's  Debates,  vol. 
vi.  p.  341,  363.] 

However,  this  act,  which  came  into  existence  without 
a  struggle,  afterwards  was  made  a  subject  of  discussion* 


712  OPINIONS    OP    EMINENT    LAWYERS. 

When  it  had  been  carried  into  execution,  and  the  pro- 
visional articles  with  America,  together  with  the  other 
preliminary  treaties,  came  to  be  considered  in  parlia- 
ment, in  February  1783,  this  act  was  brought  in  ques- 
tion, and  there  was  expressed  great  difference  of  opinion 
as  to  its  original  desigiij  the  construction  to  be  put  on  it, 
and  the  effect  it  produced.  In  the  first  debate  it  was 
objected  to  the  provisional  articles,  that  the  king  has  no 
right,  by  his  prerogative,  nor  by  the  act  of  last  session, 
viz :  stat;  22  Geo.  III.  c.  46,  to  alienate  territories  not 
acquired  by  conquest  during  the  war.  The  gentlemen 
of  the  law  being  called  upoii  by  this  objector*,  Mr.  Mans- 
field answered,  that,  certainly  by  the  act  of  last  session, 
the  king  was  authorised  to  alienate  for  ever  the  inde- 
pendence of  America. — [Debrett's  Debates,  vol.  ix.  280.] 
On  a  subsequent  day,  the  same  gentleman  [Debrett's 
Debates,  vol.  ix.  312."]  again  raised  a  question  upon  this 
act.  It  appeared  to  him  that  no  such  power  was  given 
to  the  king  by  the  act ;  that  any  power  to  alienate  part 
of  his  dominions;  or  abdicate  the  sovereignty  of  them, 
should  be  conveyed  in  express  words,  and  not  left  to  im- 
plication and  construction;  This  brought  np  Mr.  Wal- 
lace, who  was  the  framer  and  mover  of  the  bill,  and  who 
declared  that  such  power  was  given  by  the  act:  he  said, 
he  knew  of  no  power  in  the  king  to  abdicate  part  of  his 
sovereignty,  or  declare  any  number  of  his  subjects  free 
from  obedience  to  the  laws  in  being.  As  soon,  there- 
fore, as  the  resolution  for  peace  had  passed  the  house,  he 
had,  with  a  view  to  enable  his  Majesty  to  make  peace, 
drawn  the  bill;  and  as  the  subject  matter  of  it  was  ex- 
tremely delicate,  he  had  been  exceedingly  cautious  in 

*  Sir  W.  Dolben. 


OF    THE    LAW    OP    NATIONS.  713 

wording  it  as  generally  as  possible ;  but  the  whole  aim 
of  it  was  to  enable  his  majesty  to  recognize  the  inde- 
pendence of  America ;  and  that  it  gave  the  king  such  a 
power,  was,  he  said,  indisputable,  because  by  the  word- 
ing of  it  that  power  was  vested  in  the  king,  any  law, 
statute,  matter,  or  thing  to  the  contrary  notwithstand- 
ing. 

This  explanation,  by  the  mover  of  the  act>  did  not 
satisfy  the  objector,  who  had  been  the  seconder  of  it, 
but  who  now  declared  he  had  never  supposed  such  an 
interpretation  could  be  put  on  the  bill;  and  if  he  had 
thought  it  could,  he  would  not  have  seconded  it :  but  it 
was  defended  by  the  attorney-general  Kenyon  *-,  who 
said  the  act  clearly  gave  authority  to  the  king  to  recog- 
nize the  independence  of  the  Americans ;  adding  that  it 
was  obvious,  the  Americans,  standing  in  the  predicament 
of  persons  declared  to  be  rebels  at  the  time  of  passing 
the  act,  it  was  necessary  to  word  it  in  the  general  and 
Cautious  manner  in  which  it  stood  upon  the  statute 
book; 

Though  the  attorney-general  Kenyon  thus  supported 
the  late  attorney-general  Wallace  in  the  construction 
and  effect  of  his  act,  he,  at  the  same  time,  denied  the 
position,  that  the  prerogative  of  the  crown  needed  any 
such  special  act  of  parliament  to  empower  it  to  declare 
the  American  independence.  Mr.  Lee  joined  in  opinion 
upon  that  point  with  Mr:  Wallace.  [Debates,  p.  314> 
315]. 

A  like  difference  of  opinion  was  discovered  among  the" 
law  lords,  in  the  discussions  of  the  provisional  articles 

*  He  succeeded  Mr.  Wallace,  on  the  change  of  the  ministry,  in  March 
1782. 

91 


714  OPINIONS    OP    EMINENT    LAWYERS, 

and  the  preliminary  treaties.  It  was  maintained  by 
Lord  Loughborough,  that  the  king  had  no  authority, 
without  parliament,  to  cede  any  part  of  the  dominions 
of  the  crown,  in  the  possession  of  subjects  under  the  al- 
legiance and  at  the  peace  of  the  king ;  and  this,  his 
Lordship  said,  could  be  proved  by  the  records  of  parlia- 
ment. This  doctrine  was  treated  by  Lord  Thurlow  as 
unfounded,  and  he  strongly  maintained  the  contrary. — 
[Debates,  vol.  ii.  p.  88,  89.] 

The  difference  between  the  two  lords  had  arisen,  not 
upon  the  independence  of  the  United  States,  but  upon 
the  cession  of  the  Floridas  to  Spain;  and  it  was  on  that 
account,  no  doubt,  Lord  Loughborough  stated  his  propo- 
sition with  the  words,  under  allegiance  and  at  the  peace 
of  the  king,  which  was  a  proper  description  of  the  Flor- 
idas ;  but  the  same  could  not  be  said  so  fully  of  the  Uni- 
ted States,  which,  though  under  the  allegiance,  could 
not  be  so  well  said  to  be  at  the  peace  of  the  king.  Lord 
Thurlow,  it  is  plain,  did  not  admit  that  this  difference 
in  circumstances  made  any  difference  in  the  power  of 
the  prerogative.  It  must  surely  be  confessed,  that  this 
cession  of  the  Floridas  to  Spain,  at  the  very  moment 
that  the  American  independence  was  acknowledged, 
makes  a  great  breach  in  the  hypothesis  of  Mr.  Wallace, 
Mr.  Lee  and  Lord  Loughborough,  who  thought  stat.  22 
Geo.  III.  c.  46,  absolutely  necessary  for  enabling  the 
king  to  alienate  part  of  his  dominions.  Indeed,  the  pre- 
cedents are  all  against  such  a  restriction  on  the  prerog- 
ative ;  for  when  has  there  been  a  peace,  that  some  West 
India  island  has  not  been  ceded,  not  only  such  as  has 
been  taken  during  the  war,  but  those  of  ancient  posses- 
sion? In  truth,  this  is  another  distinction  that  has  no 
solid  foundation  in  law,  but  is  a  mere  conceit.  It  is  well 


OP    THE    LAW    OP    NATIONS.  715 

krown  that,  the  laws  of  navigation  attach  upon  a 
possession  in  America  or  Africa  immediately  on  a  sur- 
render ;  and  the  territory  is,  to  all  intents  and  purposes, 
as  much  the  king's  as  any  ancient  colony  or  plantation. 
It  is  therefore  wholly  assumption  to  raise  the  above  dis- 
tinction, and  to  consider  such  a  conquest  as  less  a  part 
of  the  dominions  of  the  crown,  and  less  under  the  pro- 
tection of  parliament,  than  the  more  ancient  possessions. 
But  taking  the  judgment  of  parliament,  (which  finally 
approved  all  these  treaties)  for  the  supreme  authority 
oil  this  question  of  law,  we  are  obliged  to  conclude  that 
the  king  had  power  to  relinquish  to  the  king  of  Spain 
his  sovereignty  over  the  two  Floridas,  without  the  spe- 
cial authority  of  any  act  of  parliament  enabling  him  so 
to  do.  This  is  a  decision,  after  argument,  when  the  ob- 
jection had  been  taken  and  reasoned  upon,  and  both 
sides  heard  openly  and  fully.  It  cannot,  after  that,  as  I 
think,  be  doubted,  that  the  same  parliament  would  have 
recognized  the  king's  power  to  relinquish  his  sovereign- 
ty over  the  United  States,  although  there  had  been  no 
such  act  as  stat.  Geo.  III.  c.  46.  The  relinquishing  of 
sovereignty  to  the  king  of  Spain,  whereby  he  parts  with 
all  royal  authority  over  his  subjects  in  the  Floridas ;  and 
the  relinquishing  of  sovereignty  over  the  colonies  of 
New  Hampshire,  &c.  &c.  to  the  United  States,  whereby 
he  parts  with  all  royal  authority  over  his  subjects  in 
New  Hampshire,  &c,  &c. ;  where  is  the  difference,  in  a 
juridical  view,  between  these  two  cases?  If  you  analyse 
them,  and  bring  them  down  to  their  first  principle,  you 
will  find  it  amounts  to  the  same  thing  in  both  cases ;  to 
this,  and  nothing  more,  namely,  that  he  makes  the  Flor- 
idas, and  makes  New  Hampshire,  &c,  equally  foreign  do- 
minions. Every  consequence  that  follows  upon  the  re- 


716  OPINIONS    OP    EMINENT    LAWYERS. 

linquishinent  of  sovereignty,  is  ascribable  to  that,  and  to 
that  only.  The  inhabitants  of  the  Floridas,  and  of  New- 
Hampshire,  &c.  &o.  become  British  subjects  living  in  a 
foreign  land,  and  lose  all  British  advantages,  now  that 
British  ground  is  taken  from  under  them,  in  like  man- 
ner, and  in  none  other,  as  if  they  had  removed  them- 
selves to  the  foreign  soil  of  Spanish,  or  Portuguese 
America.  Indeed,  no  one  has  ever  pretended  that  the  in-» 
habitants  of  the  Floridas,  who  were  British  subjects  born, 
were  made  aliens  by  the  cession,  though  some  do  mis- 
takenly suppose  this  deprivation  to  happen  to  Amercans 
of  the  United  States,  who  were  put  under  the  same  cir- 
cumstances, at  the  same  time,  by  the  same,  or  by  asimir 
lar  operation,certainly  for  the  same  purpose, that  of  peace. 
I  say,  that  the  cession  has  the  single  effect  of  making 
the  Floridas,  and  the  united  states  of  New  Hampshire, 
&c.  &c.  foreign  countries;  and,  that  no  alteration  is  made 
in  the  birthrights  of  British-born  subjects,  because  what 
is  covenanted,  granted,  and  agreed  in  the  treaty,  relates 
wholly  to  the  former,  and  there  is  not  a  word  that  re- 
lates to  the  latter.  The  Floridas  are  ceded  to  the  king 
of  Spain ;  that  contains  in  it  nothing  so  particular  as 
to  raise  a  question  :  the  material  consideration  is,  the 
case  of  America.  The  definitive  treaty  begins  by  the 
king  acknowledging  the  united  states  of  New  Hamp- 
shire, &c.  &c.  to  be  free,  sovereign,  and  independent 
states;  and  he  relinquishes  all  claims  to  the  government, 
propriety,  and  territorial  rights  of  the  same :  the  king 
here  parts  with  the  states,  that  is,  the  political  machine- 
ry formed  for  the  government  of  those  colonies,  the  gov- 
ernor, the  assembly,  &c.  &c.  &c.  and  declares  them  inde- 
pendent ;  to  make  this  independence  quite  clear  and  un- 
clogged,  he  relinquishes  all  territorial  sovereignty.  The 


OP    THE    LAW    OF    NATIONS.  717 

thing  given  up  by  the  king,  is, his  own  superintendance 
and  authority  over  the  local  authority  of  those  places  ; 
of  the  individuals  his  subjects,  there  residing,  he  says 
nothing ;  there  is  not  a  word  in  the  treaty  affecting 
their  birthright  as  British  subjects. 

There  is  certainly  not  a  word  expressed  upon  that 
point ;  but  I  think  the  great  mistake  in  this  discussion, 
and  that  which  misleads  those  on  the  other  side,  is,  an 
implication  which  they  think  necessarily  arises  upon 
this  transaction  of  granting  independence  to  America  ; 
and  they  allow  themselves  *  to  be  carried  away  by  the 
force  of  expressions,  which,  without  any  defined  mean- 
ing, seem  to  signify  something,  and  are  repeated  with- 
out examination  into  their  import.  It  has  been  said, 
that  by  acknowledging  the  independence  of  the  United 
States,  the  king  dissolved  the  allegiance  of  the  Ameri- 
cans, and  they  of  course  were  made  aliens;  this  is  an  in- 
ference drawn  from  the  independence,  but  it  is  wholly  a 
fiction  of  imagination  among  politicians  ;  there  is  no 
such  principle  in  the  law  of  England ;  it  never  was  heard 
of;  can  any  book,  case,  or  dictum  be  shown,  that  gives 
the  most  remote  intimation  of  any  such  operation  ?  In 
the  cession  of  territory,  the  king  has  always  forborne  to 
declare  any  thing  expressly  on  the  article  of  allegiance, 
and  never  before  has  any  one  raised  the  construction, 
that  allegiance  was  ever  surrendered  by  the  king,  any 
further  than  the  nature  of  the  cession  did,  in  point  of 
exercise  and  enjoyment,  circumscribe  the  scope  of  it. 
As  the  king  has  in  no  case  of  cession  made  an  actual  re- 
linquishment  of  allegiance  due  to  him,  so  has  he  in  no 
case  of  such  cession  ventured  to  take  away  what  was 
not  his,  but  belonged  to  the  individuals  his  subjects ; 
who  were  to  suffer  enough  in  being  compelled  thence- 


718  OPINIONS    OP    EMINENT    LAWYERS. 

forward  to  live  in  a  foreign  land,  and  who  might  very 
well  be  indulged  with  the  consolation  of  retaining  their 
birthright  of  British  subjects  ;  a  right  which  might  be 
brought  into  enjoyment  and  exercise,  whenever  they 
should  again  come  to  live  upon  British  ground. 

With  all  the  instances  of  cessions  which  are  examples 
to  the  contrary,  I  cannot  understand  how  any  one  should 
entertain  the  imagination  of  their  effect  in  dissolving 
personal  allegiance,  accompanied  too  with  such  an  incon- 
sequent result,  as  that  the  British  subject  so  released  be- 
comes thereby  an  alien. 

To  return  to  the  objection  which  I  was  to  consider,  in 
regard  to  the  design  and  effect  of  stat.  22  Geo.  III.  c. 
46.;  it  appears,  from  what  I  have  before  detailed  out  of 
the  Parliamentary  Debates,  that  the  statute  was  deemed 
necessary,  in  order  to  satisfy  the  scruples  of  some  per- 
sons, who  thought  that  the  king  had  not  at  common  law 
power  to  alienate  any  part  of  his  dominions ;  further, 
that  it  was  necessary  the  king  should  have  power  to  sus- 
pend the  operation  of  certain  acts  of  parliament,  which 
it  was  foreseen  might  stand  in  the  way  of  making  peace, 
It  was  afterwards  contended  that  the  statute  had  also 
the  special  effect  of  authorising  the  king  to  grant  inde- 
pendence to  the  colonies;  because,  as  it  empowered  him 
to  make  peace  or  truce,  any  law,  statute,  matter,  or  thing 
to  the  contrary  notwithstanding,  it  of  course,  say  these 
objectors,  empowered  him  to  grant  independence,  or  in- 
deed any  thing  that  should  be  deemed  necessary  towards 
making  such  peace  or  truce;  meaning  by  such  independ- 
ence, disfranchisement,  and  converting  the  Americans 
into  aliens. 

After  such  explicit  discovery  as  was  before  made  of 
the  nature  and  design  of  the  act,  how  are  we  to  acqui- 


OP    THE    LAW    OF    NATIONS.  719 

esce  in  the  construction  thus  put  upon  it  in  the  objec- 
tion? What  reason  is  there  for  saying  that  the  act  has 
no  meaning  or  object,  unless  the  Americans  were  ad- 
mitted to  be  aliens  and  foreigners,  in  a  state  of  legiti- 
mate war,  and  not  rebels? 

The  second  of  these  renewed  objections  to  the  grand 
common  law  position  on  which  I  build  this  argument,  is, 
to  my  understanding,  as  extraordinary  and  as  anomalous 
as  the  preceding ;  but  it  is  not  so  novel.  I  admit,  I 
have  before  heard  the  notion  ot  Americans  domiciliating 
themselves  in  the  United  states,  and  being,  in  conse- 
quence of  such  election,  pronounced  to  be  no  longer  Brit- 
ish subjects,  but  aliens  and  American  citizens  only ;  yet 
it  always  seemed  to  me  to  be  an  arbitrary  and  ground- 
less assumption,  totally  irreconcilable  to  principle  or  pre- 
cedent. 

As  to  the  precedent,  I  must  again  recur  to  to  the  in- 
stances of  the  Floridas,  Tobago,  and  other  places  that 
have  been  ceded  to  foreign  powers.  Was  it  ever  object- 
ed to  the  British-born  subjects  inhabiting  those  coun- 
tries, that  having  domiciliated  themselves  there,  they 
were  considered  as  aliens  in  the  British  dominions  1 
Where  should  men  be  domiciliated,  but  where  their  home 
is?  And  did  it  ever  enter  into  the  mind  of  the  king  or 
his  ministers,  that,  upon  a  cession  of  territory,  the  Brit- 
ish-born subjects  inhabiting  there  should  migrate,  at  all 
hazard  to  their  worldly  affairs  and  the  prosperity  of 
their  family?  There  are  no  such  migrations,  no  such 
expectations  of  them ;  nor  have  they  ever  been  deemed 
necessary  for  keeping  alive  the  birthright  of  a  British 
subject.  Why  then  should  it  be  necessary,  for  the  first 
time,  in  the  case  of  the  inhabitants  of  the  United 
States? 


720  OPINIONS    OF    EMINENT    LAWYERS. 

I  think  it  erroneous  in  principle,  because  it  makes 
that  depend  on  the  option  and  capriciousness  of  the  per- 
son himself,  which  has  ever  been  deemed  an  indelible 
character,  one  he  is  not  at  liberty  to  put  off,  that  of  a 
British  subject.  All  the  maxims  that  we  have  heard 
about  birthright  and  natural  allegiance  are  contrary  to 
such  a  supposition,  of  a  person  choosing  whether  he  will 
cease  to  be  a  British  subject  and  begin  to  be  an  Ameri- 
can citizen;  but  all  those  maxims  are  consistent  with 
the  construction  which  I  contend  for,  namely,  that  such 
persons  owe  a  local  allegiance  while  in  America;  and 
when  they  come  here,  their  rights  of  British  subjects 
revive,  and  their  natural  allegiance  attaches :  and  it 
cannot  be  denied  $  that  in  such  a  state  of  things  there  is 
a  reciprocity  of  duty  and  protection  between  the  sove- 
reign and  the  subject,  which  is  quite  commensurate  with 
their  respective  situations. 

Tjiis  imagination  of  optional  allegiance,  and  extin- 
guishment of  natural  rights,  is  wholly  inconsistent  with 
the  position  resolved  in  Calvin's  case,  which  is  laid  down 
generally,  without  making  the  consequence  of  continu- 
ing the  rights  of  birth  to  depend  on  any  condition  or 
observance  whatsoever.  Such  absolute,  entire,  and  in- 
delible quality,  is  what  the  common  law  ascribes  to  those 
rights  of  subjects  that  come  to  us  by  birth,  and  by  birth 
only. 

Such  are  the  observations  to  which  these  two  new  ob- 
jections seem  to  be  open.  These  objections  do  not  ap- 
pear to  me  to  have  more  force  in  them  than  the  former ; 
and  I  do  not  see  any  thing  in  either  of  them  to  invali- 
date the  resolution  in  Calvin's  case,  and  the  application 
of  it,  without  any  qualification,  or  deduction,  to  citizens 
of  the  United  States.  De^  15,  1808, 


OF    THE    LAW    OP    NATIONS.  721 

December   16,  1808. 

In  a  conversation  with  a  civilian  upon  this  subject,  I 
found  he  had  made  up  his  mind  to  the  negative  of  the 
question ;  but  it  was  upon  principles  wholly  indepen- 
dent of  the  common  law.  He  considered  British-bora 
subjects,  residing  in  an  island  or  country  ceded  by  his 
Majesty,  to  become  thereby  aliens ;  he  could  not,  there- 
fore, he  said,  doubt  about  the  state  of  Americans,  especi- 
ally after  the  act  of  parliament  which  has  been  so  often 
cited.  •  lie  called  for  some  case  lately  decided  in  the 
courts  at  Westminster,  to  contradict  what  he  alleged  of 
ceded  countries  ;  Iliad  none  to  adduce,  and  could  only 
refer  to  the  common  law  principle,  which  had  never 
been  denied. 

I  preceive  that  the  civilian  went  upon  the  law  of  his 
court,  where  they  hold  that  persons  take  their  character 
from  the  country  where  they  reside  ;  so,  the  ceded  coun- 
try becoming  foreign,  they  deem  the  inhabitants  foreign 
too.  Such  is  the  rule  in  prize  causes,  where  hostility  is 
to  be  regarded,  which  must  ever  be  a  national,  not  a 
personal  consideration  ;  accordingly,  an  enemy's  country 
makes  all  the  inhabitants  enemies.  So,  indeed,  at  com- 
mon law,  the  country  gives  the  character  to  the  persons 
who  inhabit  it,  in  matters  that  are  governed  by  the 
character  of  the  country.  The  British-born  subjects  of 
a  ceded  colony  lose  their  character  of  British  colonists, 
because  their  country  has  become  foreign  ;  they  are  re- 
strained by  the  navigation  laws  that  before  protected 
them  ;  they  cannot  trade  as  British  colonists.  They 
are  foreigners,  therefore,  in  everything  that  relates  to 
the  country  they  live  in,  as  the  civilian  contends ;  but 
the  common  lawyer  will  add,  they  are  in  their  own  per- 
92 


722  OPINIONS    OF    EMINENT   LAWYERS. 

sonal  rights  still  British  subjects,  as  they  were  born ; 
and  they  will  be  entitled  to  claim  the  privileges  of  such 
whenever  they  remove  from  the  foreign  country  which 
obstructs  the  application  and  exercise  of  them,  and  come 
to  a  place,  that  is,  some  place  in  the  king's  dominions, 
where  alone  the  privileges  of  a  British  subject  have 
their  exercise  and  application. 

In  truth,  the  character  of  a  British-born  subject  is 
not  merely  national  and  local,  but  personal  and  perma- 
nent. It  is  born  with  him  and  remains  with  him  during 
life,  never  to  be  divested  ;  unchangeable,  indelible.  It 
is  not  so  with  what  is  called  a  British  subject ;  that  does, 
indeed,  depend  upon  locality ;  and  that  is  the  character 
which  the  civilian  contemplates.  I  believe,  much  of  the 
misapprehension,  upon  this  occasion,  has  arisen  from 
not  preserving  the  distinction  between  British  subjects, 
and  natural-born  British  subjects ;  they  are  not  the 
same,  though,  I  believe,  they  are  reasoned  upon  as  if 
they  were. 

British  subject,  and  alien,  are  not  terms  contradictory; 
because  the  two  characters  may  concur  in  the  same  per- 
son :  the  inhabitants  of  the  Dutch  colonies,  now  in  our 
possession,  are  British  subjects  ,  they  have  taken  the 
oath  of  allegiance,  and  they  have  the  advantages  of 
British  colonists ;  but  they  are  aliens,  because  they 
were  born  out  of  the  king's  allegiance.  The  inhabitants 
of  the  Floridas,  born  while  those  were  British  colonies, 
are,  however,  not  now  British  subjects,  because  they  in- 
habit a  foreign  country ;  nor  are  they  aliens,  because 
they  were  not  born  out  of  the  king's  allegiance ;  but 
they  are  natural-born  British  subjects,  because  they 
were  born  within  the  king's  allegiance  :  so  that  it  may 
be  predicated  of  the  same  person,  that  he  is  a  "  British 


OP    THE    LAW    OF    NATIONS.  723 

subject,"  and  an  "  alien ;"  that  he  is  "  a  natural-born 
British  subject,"  and  not  a  "  British  subject ;"  according- 
ly as  you  speak  of  the  local  and  national  character,  or 
of  the  personal  character.  "  British  subject"  is  a  term 
of  common  parlance,  that  has  not  properly  a  legal  de- 
fined meaning :  it  serves  sufficiently  in  ordinary  dis- 
course for  "natural-born  subject,"  but  it  can  be  properly 
applied  only  for  intimating  the  local  and  national  char- 
acter. The  true  legal  description  is  that  of  natural- 
born  subject:  this  is  the  opposite  to  alien;  and  these 
are  the  terms  that  describe  the  personal  character,  which 
is  the  only  one  sought  in  the  present  inquiry,  and  the 
only  one  that  is  a  subject  of  discussion  in  the  books  of 
the  common  law, 

Through  the  whole  of  the  argument,  I  have  been 
insisting  on  this  personal  character  of  British-born 
Americans  ;  but  those  who  object  to  my  conclusion  in 
favor  of  them,  from  the  common  law  principle  (which 
principle,  however,  they  do  not  pretend  to  dispute,) 
keep  their  eye  principally  on  the  local  and  national 
character  of  the  present  Americans.  Their  two  great 
topics  are  quite  of  that  sort ;  namely,  the  stat.  22  Geo. 
III.  c.  46,  for  making  peace  or  truce  with  the  colonies 
and  plantations ;  and  the  definitive  treaty  which  ac- 
knowledges the  independence  of  the  United  States, 
and  relinquishes  sovereignty,  propriety,  and  terri- 
torial dominion.  Surely  all  these  are  national  and 
local  ideas,,  riveted  to  the  very  soil,  and  limited  by 
metes  and  bounds.  Nothing  is,  by  either  instrument, 
said  or  done,  as  to  the  personal  character  of  the  inhabi- 
tants ,  that  was  left,  as  the  personal  character  of  the  in- 
habitants of  theFloridas,  to  the  sentence  and  disposition 
of  the  law,  when  any  of  the  individuals  residing  there 


724  OPINIONS    OP    EMINENT    LAWYERS. 

chose  to  remove  himself  into  a  situation  where  his  per- 
sonal character  could  be  brought  into  question,  and  con- 
sidered distinctly  from  local  and  national  character, 
which  the  king  of  Great  Britain  had  been  pleased  to 
superinduce  upon  him  by  ceding  the  country  where-  he 
was  born  ;  that  is,  when  any  such  individual  should 
choose  to.  come  into  the  king's  dominions,  where  alone 
his  personal  rights  can  have  their  application,  and  ex-? 
ercise. 

The  only  consideration  for  us,  in  this  country,    seems 
to  be  such  personal  character,  whether  it  is  the  case  of 
Florida,  or  a  native  of  the  United  States,  born  within 
the  king's  allegiance. 
Dec.  16,  1808. 

December  17,  1808. 

A  passage  has  been  cited  by  the  objectors  from  Mr. 
Wooddeson's  lectures  ;  and  as  this  is  the  only  book  au- 
thority they  have  been  able  to  adduce,  it  must  not  be 
let  pass  without  observation  ;  especially  as  it  has  ac-; 
quired  a  sort  of  reflected  consequence,  by  being  insert- 
ed in  Sir  Henry  Gwillim's  edition  of  Bacon's  Abridg- 
ment, title  "•  Alien."  The  passage  is  this,  "  But  when 
by  treaty,  especially  if  ratified  by  act  of  parliament, 
our  sovereign  cedes  any  island  or  region  to  another  state, 
the  inhabitants  of  such  ceded  territory,  though  born 
under  the  allegiance  of  our  king,  or  being  under  his  pro- 
tection, while  it  appertained  to  his  crown  and  authority, 
become,  I  apprehend,  effectually  aliens,  or  liable  to  the 
disabilities  of  alienage,  in  respect  to  their  future  con- 
cerns with  this  country.  And  similar  to  this,  I  take  to 
be  the  condition  of  the  revolted  Americans,  since  the 
recognition  of  their  independent  commonwealths." — - 
|_Vol,  i.  p.  382.] 


OF    THE    LAW    OP    NATIONS.  725 

To  those  who  insist  on  this  as  an  authority  for  saying 
that  such  persons  become  aliens  and  cease  to  be  natural- 
born  subjects,  it  might  be  enough  to  reply,  that  a  pro- 
position laid  down  with  an  alternative,  as  this  is,  has 
not  in  it  sufficient  precision  to  be  authority  for  any 
thing:  "  effectually  aliens,  or  liable  to  the  disabilities  of 
alienage,"  is  a  circumlocution  that  does  not  suit  with 
the  plainness  required  in  a  juridical  proposition.  And 
yet,  I  think,  the  author  has  expressed  himself  not  un- 
suitably with  another  sense  of  the  word  alien r accompani- 
ed, as  it  here  is,  with  an  exposition.  It  seems  to  me 
that  "or"  is  not  intended  here  to  be  a  conjunction 
merely  ;  but  it  bears  a  sense  that  is  not  uncommon,  it 
introduces  a  member  of  a  sentence  that  is  meant  to  be 
explanatory  of  the  foregoing ;  and  is  the  same  as  "  or  in 
other  words,J>  "•  or  to  speak  more  plainly,"  "  or  to  speak 
more  properly."  In  this  sense  of  "  or,"  he  explains  the 
meaning  of  "  effectually  aliens,"  by  shewing,  they  are 
liable  to  the  disabilities  of  alienage  in  respect  to  their 
future  concerns  with  this  country."  Their  "  future  con- 
cerns with  this  country"  must  be  the  trade  they  carry 
on  with  this  country  ;  something  which  they  transact 
from  a  distant  place,  something  that  affects  the  whole 
community,  something  that  arises  out  of  their  locality 
and  national  character.  He  is  speaking  of  the  local 
and  national  character,  which  we  discussed  before  (in 
pa.  694,)  and  which  was  superinduced  on  the  inhabitants 
of  these  ceded  countries,  in  respect  of  which  the  in- 
habitants become  a  species  of  aliens,  or  as  the  author 
expresses  it  in  an  undefined  epithet,  "  effectually  aliens," 
or,  I  suppose,  "in  effect  aliens;"  that  is,  in  the  case  of 
trading  with  this  country. 

I  take  this  to  have  been  what  the  author's  mind  was 


726  OPINIONS    OP    EMINENT    LAWVERS. 

then  contemplating,  the  local  and  national  character  of 
such  ceded  colonists;  and  by  no  means  their  personal 
character,  that  of  natural-born  subjects,  which  he  knew, 
as  well  as  all  lawyers,  can  neither  be  surrendered  nor 
taken  away. 

Mr.  Wooddeson  has  certainly  been  not  sufficiently 
technical  in  expressing  himself  upon  this  occasion. '  It 
may  be  fit  enough  to  oppose  what  he  has  said  by  an  ex- 
pression in  the  treaty  of  peace,  which,  though  in  like 
manner  not  technical,  has  evidently  a  meaning  that  can- 
not be  mistaken,  and  that  makes  against  his  conclusion. 
In  the  fifth  article,  it  is  agreed,  that  congress  shall  re- 
commend to  the  legislatures  of  the  respective  states,  to 
provide  for  restitution  of  confiscated  estates  which  be- 
long to  real  British  subjects.  Now,  if  there  are  "  real 
British  subjects,"  it  is  implied  there  are  British  subjects 
who  are  not  real,  that  is,  less  so  than  the  others.  No 
one  can  doubt,  that  the  one  expression  means  British 
subjects,  not  comprehended  within  the  new  states, erect- 
ed and  recognized  by  the  king's  acknowledgment  in  the 
treaty  ;  the  other  must  mean  those  inhabiting  the  United 
States.  It  is  plainly  indicated  therefore  by  this  phrase, 
that  both  contracting  parties  in  the  treaty  admitted  that 
the  inhabitants  of  the  United  States  did  remain,  in 
some  sort,  British  subjects  ;  and  the  mode  in  whi^h  they 
so  continued  can  only  be  that  which  I  have  been  con- 
tending for. 

Dec.  17,  1808. 

According  to  the  foregoing  reasoning,  I  think  the  law 
officers,  if  consulted,  would  give  an  opinion  somewhat 
to  the  following  effect. 

Supposed  opinion  of  the  law-officers. 
"  In  obedience  to  your  Lordship's  commands,  we  have 


OP    THE    LAW    OF    NATIONS.  727 

Considered  the  question,  whether  inhabitants  of  the 
United  States,  born  there  before  the  independence,  are, 
on  coming  to  this  kingdom,  to  be  considered,  as  natural- 
born  subjects ;  and  we  are  of  opinion,  that  such  a  per- 
son, coming  to  this  kingdom,  cannot  be  denied  the  char- 
acter and  privilege  of  a  natural-born  subject. 

In  forming  this  opinion,  we  have  given  due  considera- 
tion to  all  the  topics  that  have  been  suggested  to  us  from 
different  quarters,  on  both  sides  of  the  question,  as  well 
as  to  the  principles  of  the  common  law,  which  are  to  be 
found  in  books  of  known  authority  amongst  lawyers. 

Among  the  suggestions  that  have  been  made  to  us, 
are  stat.  22  Geo.  III.  c.  46,  and  the  definitive  treaty  of 
peace  with  the  United  States;  and  we  find  ourselves 
obliged  to  declare,  that  nothing  in  those  two  instruments 
appears  to  us  to  make  any  alteration  in  the  case  of  Ameri^ 
cans,  when  compared  with  others  of  his  Majesty's  sub- 
jects who  reside  in  a  ceded  country.  In  like  manner  as 
the  inhabitants,  natural-born  subjects  of  his  Majesty,  in 
the  two  Floridas,  ceded  to  the  king  of  Spain,  (at  the  same 
time  that  the  independence  of  the  United  States  was. 
acknowledged)  are  still  deemed  to  retain  their  privilege 
and  character  of  natural-born  subjects,  so,  we  thinly 
these  persons  being  similarly  circumstanced,  when  they 
come  into  this  kingdom,  cannot  be  denied  to  retain  their 
original  privileges  and  character; 

Our  reasons  for  thinking  that  the  statute  and  treaty 
make  no  difference  or  peculiarity  in  the  case  of  the  Uni- 
ted States,  are  these  :  The  statute,  upon  the  face  of  itj 
appears  to  have  been  made  for  two  purposes  ;  First,  To 
enable  the  king  to  make  peace  or  truce  with  the  colonies 
or  plantations  in  question ;  Secondly ;  To  enable  the 
king  to  suspend  the  operation  of  certain  acts  of  parlia-1 


728  OPINIONS    OF    EMINENT    LAWYERS. 

ment  that  might  stand  in  the  way  of  peace.  The  need 
of  the  second  provision  is  obvious ;  the  need  of  the  first 
is  not  so  plain ;  but  we  are  told,  in  a  debate  in,  the 
house  of  commons,  by  the  attorney-general  Wallace, 
who  drew  the  bill  and  moved  it,  that  it  Was  intended 
to  give  the  king  a  power  of  alienating  those  colonies  ; 
a  power  which  he,  and  some  others,  considered  the  king 
as  not  possessing  by  the  common  law.  Without  saying 
any  tbing,  at  present,  on  the  justness  of  such  opinion, 
we  allege  it  as  the  best  testimony  to  the  design  of  the 
act.  This  design  is  perfectly  consistent  with  the  con- 
ception and  wording,  and  it  does  not  appear  to  us  neces- 
sary or  proper  to  suppose  any  other  meaning  in  this 
act.  We  conclude,  therefore,  that  there  was  no  particu- 
lar design,  by  this  legislative  measure,  to  make  any 
alteration  in  the  character  of  the  Americans,  beyond 
that  which  necessarily  must  and  always  has  followed 
upon  the  cession  of  any  of  his  Majesty's  colonies. 

After  these  observations  on  the  act  for  enabling  the 
king  to  make  peace,  we  come  to  the  definitive  treaty 
itself;  and  we  find  ourselves  compelled  to  declare,  that 
as  we  perceive  no  design  in  the  act  to  enable  the  king 
to  alter  the  personal  character  of  the  Americans,  so  in 
the  treaty  we  discover  no  declaration  or  provision  that 
can  be  construed  expressly,  or  impliedly,  to  alter  their 
original  character  of  natural-born  subjects,  and  to  make 
them  aliens. 

In  the  first  article  of  the  treaty,  the  king  acknowl- 
edges the  United  States  of  New  Hampshire,  &c.  &c.  to 
be  free,  sovereign,  and  independent  states  ;  and  he  re- 
linquishes all  claim  to  government,  propriety,  and  ter- 
ritorial rights  of  the  same.  It  is  upon  this  provision, 
and  these  words,  that  the  separation  and  independence 


OP    THE    LAW    OF    NATIONS..  729 

of  those  colonies  are  grounded.  The  effect  of  this  pro- 
vision appears  to  us  to  be  confined  wholly  to  the  soil 
and  territory,  which  is  thereby  made  foreign  and  ceases 
to  be  a  part  of  the  king's  dominions  ;  we  cannot  discover 
any  thing  that  at  all  affects  the  personal  character  of 
the  natural-born  subjects-,  inhabiting  such  foreign  ter- 
ritory. 

Indeed,  we  are  much  surprised  that  any  such  peculiar 
effect  should  be  ascribed  to  this  cession  of  territory  to 
the  United  States,  (for  so  it  is,  in  truth)  when  at  the 
same  peace,  the  adjoining  colonies,  the  Floridas,  were 
ceded  to  the  king  of  Spain ;  and  no  such  consequence  of 
the  cession  are  supposed  by  any  body  to  affect  the  nat- 
ural-born subjects  residing  there.  We  may  here  too  re- 
mark, that  the  cession  of  the  Floridas  was  made  with- 
out any  such  enabling  statute, "by  the  king's  common 
law  prerogative ;  which  demonstrates,  that  in  the  opin- 
ion of  the  majority  of  parliament,  who  approved  the 
treaty,  the  act  of  the  attorney-general  Wallace  owed  its 
origin,  not  to  an  absolute  necessity  in  law,  but  to  an 
abundant  caution,  or  some  scruple  in  politics,  which  de- 
serves no  regard  in  a  judicial  consideration  of  the  sub- 
ject. We  are  not  able  to  discover  any  distinction  in  the 
two  cases  of  the  Floridas,  and  of  the  United  States.  In 
both  instances  the  soil  was  made  foreign,  and  the  inhab- 
itants had  superinduced  upon  them  a  new  local  and  na- 
tional character ;  that  is,  they  became  locally  the  inhab- 
itants and  subjects  of  a  foreign  nation,  and  they  lost  ad- 
vantages of  trade  and  benefits  of  various  sorts,  which 
natural-born  subjects  must  lose,  when  they  inhabit  and 
make  themselves  subjects  of  a  foreign  land.  But,  under 
the  control  of  this  new  local  and  national  character, 

their  personal  character  of  natural-born  subjects  still  re- 
93 


730  OPINIONS    OP    EMINENT    LAWYERS. 

mains ;  and  we  see  nothing  in  law  to  prevent  it  reviving 
and  enjoying  all  its  privileges  when  the  person  comes 
into  the  King's  dominions,  where  alone  the  rights  of  a 
British-born  subject  have  their  full  application  and  ex- 
ercise. 

Having  declared  this  our  opinion,  that  nothing  is,  de 
facto,  done  by  the  act  or  the  treaty  to  take  away  the 
personal  character  of  natural-born  subjects  residing  in 
the  United  States,  it  may  seem  unnecessary,  though  we 
think  it  not  unsuitable  to  add,  that  we  know  of  no  in- 
stance where  the  crown  has  presumed  to  exercise  the 
power  of  taking  away  the  personal  rights  of  a  natural- 
born-subject  ;  neither  have  we  met  with  any  principle 
in  the  law  of  England  that  warrants  such  a  supposition ; 
nor  can  we  conceive  any  proceeding  by  which  such  a  di- 
vestment or  extinguishment  of  natural  rights  can  be  en- 
forced. As  the  common  law  recognizes  no  such  princi- 
ple as  that  of  disfranchising  a  natural-born  subject,  the 
character  has  been  deemed  indelible ;  and  the  parliament 
has  never  interposed,  on  the  occasions  of  cession  of  ter- 
ritory, to  take  from  the  British  inhabitants  of  such  coun- 
tries that  which  the  common  law  has  permitted  them  to 
retain. 

Such  having  been  the  construction  of  law  in  cases  of 
cession,  which  have  been  made  sometimes,  no  doubt, 
against  the  wishes  of  the  inhabitants,  and  always  with- 
out asking  their  consent,  a  principle  of  law  has  grown 
up  and  established  itself,  which  it  seems  too  late  now  to 
question  in  the  case  of  the  United  States.  We  have 
given  full  consideration  to  the  diiference  of  circumstan- 
ces which  led  to  that  cession,  the  rebellion  and  war  that 
preceded  it,  and  were  the  cause  of  it,  and  the  claim  of 
the  colonists  to  be  independent;  but,  we  think,  this  dif- 


OF    THE    LAW    OP    NATIONS.  731 

ference  of  circumstances  makes  no  alteration  in  the  legal 
result  arising  from  the  new  situation  of  the  parties. 
Such  matters  are,  as  we  think,  wholly  political ;  and  as 
they  are  not  of  a  nature  to  be  subjected  to  any  juridical 
examen,  we  do  not  see  how  they  can  be  brought  into 
the  account,  when  we  are  applying  the  legal  principle 
before  mentioned. 

Conformably,  therefore,  with  the  principle  and  prac- 
tice that  have  long  been  acknowledged,  and  declaring 
that  there  appears  no  reason  in  law  for  not  applying  the 
same  principle  to  the  inhabitants  of  the  United  States, 
we  repeat  the  opinion  we  before  expressed,  that  the  per- 
sons described  in  the  question  ought  to  be  considered,  in 
this  kingdom,  as  natural-born  subjects." 

Such,  I  think,  would  be,  or  should  be,  the  opinion  of 
the  law-officers  on  the  present  question. 
Dec.  20,  1808. 

Reply  to  observations  on  the  subject  of  the  foregoing 
argument. 

January  17,  1809. 

First,  I  cannot  admit  there  is  any  straining  to  bring 
the  Americans  within  Calvin's  case ;  and  I  maintain, 
the  circumstances  that  distinguish  them  from  the  pre- 
cise point  in  that  case  are  fairly  and  fully  considered  by 
me. 

It  may  not  be  necessary,  in  arguing  with  you,  to  ad- 
duce such  authority  as  Calvin's  case,  because  you  do  not 
dispute  it.  But  the  persons  I  had  to  deal  with  were  ig- 
norant of  the  principles  of  that  case,  and  I  needed  such 
an  authority  to  set  them  right.  I  know  no  book  case 
where  the  principles  of  allegiance  and  native  rights  are 
laid  down  and  explained,  except  in  that  only  instance  ; 


732  OPINIONS    OF    EMINENT    LAWYERS. 

the  principle  and  nature  of  allegiance  and  of  native 
rights  is  the  first  step  in  the  present  argument,  and  the 
subsequent  parts  of  it  would  have  been  without  founda- 
tion if  I  had  not  taken  that  case  for  a  basis. 

The  necessity  for  going  so  far  back  in  the  argument 
was  shewn  to  me  by  the  civilian  *  ;  who  laid  down  the 
law,  that  the  king's  subjects  of  a  ceded  country  become 
thereby  aliens ;  when  he  called  for  some  decided  case  to 
show  the  contrary,  I  had  no  decided  case  (you  know 
there  is  none)  but  the  resolutions  and  arguments  of  Cal- 
vin's case.  He  felt  this  to  be  an  important  authority  ; 
and  the  piece  of  law,  which  you  admit,  I  doubt  whether 
you  can  ground  upon  any  other  authority  in  tlje  books. 
The  circumstances  in  Calvin's  case  are  different  from, 
those  of  the  Americans ;  but  the  principle  is  the  same 
(I  mean  the  principle  of  the  resolution  that  I  quote) : 
whether  that  difference  in  circumstances  makes  any  dif- 
ference in  the  application  of  the  principle  is  the  very 
question  in  hand. 

Secondly,  You  here  admit  that  natural-born  subjects^ 
continuing  their  residence  in  a  ceded  country,  do  not 
thereby  become  aliens :  you  go  so  far  as  to  think  that, 
if  they  joined  in  war  with  their  new  sovereign  against 
this  kingdom,  .it  would  be  treason  in  them.  I  will  not 
say  any  thing  upon  this  point,  except  to  remind  you 
that  my  argument  is  wholly  confined  to  an  American 
coming  to  this  country,  and  residing  here. 

The  other  point  in  this  part  of  your  answer  makes 
the  main  of  your  third  article. 

Thirdly,  Your  third  topic  is,  the  difference  between 
ceding  a  country  to  a  foreign  power,  and  the  constitu- 

Ant.  pa.  721. 


OF    THE    LAW    OF    NATIONS.  733 

ting  of  a  sovereignty  from  among  British  subjects,  and 
ceding  the  country  to  such  new  made  sovereignty.  You 
call  it  making  a  treaty  with  the  subjects  themselves, 
that  they  should  hold  the  country  as  an  independent 
state  ;  "  he  ceded  his  sovereignty  to  them."  You  rely 
upon  this  difference  in  circumstances,  which  you  make 
between  ceding  to  a  foreign  sovereign,  and  ceding  to 
British  subjects,  as  you  term  it ;  and  you  mention  one 
certain  result  from  this  difference,  that,  in  the  former 
case,  the  levying  of  war  by  the  natural  subjects  would 
be  treason ;  in  the  latter  case,  it  would  not.  I  protest, 
I  do  not  discern  this  distinction  ;;  in  both  cases>  the  sub- 
ject is  put  into  such  peculiar  situation  by  the  act  of  the 
new  sovereign,  and  being  so  circumstanced,  why  should 
it  be  treason  in  an  inhabitant  of  Florida,  more  than  in 
an  American,  to  obey  the  militia  law  of  his  new  sove- 
reign, and  bear  arms  against  us,  like  the  rest  of  his  fel- 
low subjects ! 

Some  persons  would  argue  differently  from  you  on 
this  point :  those  who  distinguish  the  British  subjects  of 
the  Floridas,  because  they  were  given  up  against  their 
will,  or  without  their  consent,  from  the  Americans,  be- 
cause these  claimed  to  be  independent,  would  not  in- 
fer upon  the  former,  who  were  wholly  passive,  the 
crime  of  treason,  and  acquit  the  latter,  who  sought  and 
made  choice  of  the  peculiar  situation  of  double  allegiance 
in  which  they  have,  placed  themselves. 

However,  this  point,  as  I  before  said,  does  not  bear 
upon  our  present  question,  which  relates  to  the  AmeriT 
can  while  he  is  in  the  king's  dominions. 

But  you  rely  upon  the  difference  of  "the  treating  with 
the  Americans,  and  giving  up  to  British  subjects  the 
sovereignty  of  the  country."  I  think  there  is  in  this  an 


734  OPINIONS    OF    EMINENT    LAWYERS. 

assumption,  and  a  reliance  upon  words,  which  has  no 
support  from  the  real  transaction.  To  come  up  to  the 
representation  you  make  about  "them,"  and  -'they," 
there  ought  to  be  a  covenant  and  grant  from  the  king, 
to  Mr.  A.,  Mr.  B.,  Mr.  C. ;  and  the  said  Mr.  A.,  Mr.  B., 
and  Mr.  C.,  ought  to  be  plainly  estopped  and  barred  by 
what  they  took  under  such  covenant  and  grant  from  the 
crown.  When  we  had  thus  ascertained  who  are  legal 
parties  to  the  transaction,  and  legally  bound  by  it,,  we 
might  then  inspect  the  charter  or  instrument,  and  search 
whether  the  king,  by  the  terms  of  it,  relinquished  his 
claims  of  allegiance  wholly  or  in  part;  and  whether  the 
British  subjects,  therein  named,  had  expressly  relinquish- 
ed, or  were  expressly  deprived  of  their  native  rights,  or 
whether  such  deprivation  arose  out  of  it  by  necessary- 
construction. 

I  think  such  should,  have  been  the  form  of  the  trans- 
action, in  order  to  come  up  to  your  supposition  ;  but 
when  we  examine  it,  we  find  it  to  be  quite  another  sort 
of  proceeding..  As  to  Mr,  A.,  Mr,  B.,  and  Mr,  C.,  it  is  a, 
matter  inter  olios  acta  ;  they  are  not  parties,  not  named,, 
not  alluded  to;  it  does  not  appear  to  have  been  trans- 
acted by  them.  Let  us  consider  the  treaty  of  peace 
which  must  be  the  instrument^  if  any,  that  produces  the 
supposed  effect. 

The  treaty  declares  New  Hampshire,  &c.  &c.  &c.  to  be 
free  and  independent  States,  and  the  king  relinquishes 
the  government  of  them.  When  this  grant  and  cove- 
nant is  brought  to  plain  facts,  it  amounts  to  this,  that 
the  king  will  no  longer  send  governors  to  those  states, 
nor  expect  the  legislative  and  executive  authority  to  be 
subordinate  to  him.  The  king  gives  this  to  the  States ; 
but  how  can  this  be  construed  to  take  any  thing  away 


OF    THE    LAW    OP    NATIONS.  735 

from  Mr.  A.,  Mr.  B.,  and  Mr.  C.7  The  king  gives  away 
the  allegiance,  which  the  States  owed  him;  it  was  his 
to  give ;  but  how  should  such  free  gift  be  construed  to 
take  away  from  Mr.  A.,  and  other  individuals,  the  private 
rights  to  which  they  were  born  1  Two  questions  arise 
upon  this,  First,  Are  the  native  rights  of  individuals 
hereby,  de  facto,  pretended  to  be  taken  away  1  Second- 
ly, Could  the  king  de  jure  take  away  such  rights? 

To  talk  of  "treating  with  them,"  and  "they  holding 
the  country  independently  of  the  king,"  is  speaking  in 
a  popular  manner,  and  without  sufficient  regard  to  jurid- 
ical circumstances.  Any  inference  of  that  sort  will  not 
be  allowed  by  law  to  deprive  a  man,  living  peaceably  in 
his  house  in  New  Hampshire,  of  his  British  rights,  that 
he  was  born  to,  and  that  are  personal  to  him,  (namely, 
which  he  can  carry  about  with  him,  and  which  do  not 
depend  on  locality,)  merely  because  some  daring  men 
have  forced  the  king  to  allow  the  States  of  New  Hamp- 
shire to  govern  him,  without  enjoying  any  longer  the 
right  of  appeal  to  the  king.  I  say,  the  law  will  not  al- 
low this,  because  personal  rights  of  British  subjects  can- 
not be  taken  away  from  multitudes  in  a  lump ;  they 
must  be  discussed  in  every  individual  case,  and  there 
must  be  a  several  judgment  and  execution  against  every 
person.  Even  the  act  of  the  king  in  this  instance,  though 
a  national  act,  and  relating  to  millions,  is  but  a  personal 
act  ;  when  he  acknowledges  them  Free  States,  and  re- 
linquishes the  government  of  them,  he  acts  only  for  him- 
self, his  heirs,  and  successors:  and  accordingly  thereto, 
and  agreeably  with  the  true  principles  of  the  law,  he 
alone  is  bound,  and  the  sovereignty  of  those  States  ceases 
to  be  his.  But  where  is  the  personal  act  of  any  Ameri- 
can relinquishing  his  own  rights  1  or  if  there  was  any 


736  OPINIONS    OP    EMINENT    LAWYERS. 

such  proceeding,  in  fact,  shew  me  the  authority  in  law 
that  recognizes  any  such  principle,  as  that  a  natural- 
born  British  subject  can  divest  himself  of  his  native 
character:  there  is  no  such  authority;  and  there  is  the 
known  maxim  of  law  against  it,  -nemo  potest  exuere  pa- 
triam. 

I  cannot,  therefore,  bring  myself  to  distinguish  the 
treaty  with  America  from  the  ordinary  case  of  cession 
to  a  foreign  sovereign :  in  both  cases,  it  is  a  transaction 
between  the  two  sovereigns  in  which  the  inhabitants 
bear  no  part;  and  it  seems  to  me  a  departure  from  prin- 
ciple, to  say,  that  the  American  is  thereby  rendered  an 
alien,  while  the  inhabitant  of  Florida  is  allowed  to  be 
still  a  British-born  subject. 

Fourthly,  I  have  raised  no  question  of  the  king's  au- 
thority to  make  the  American  treaty.  I  agree  with 
those  who  think  he  might  have  made  it  without  the  act 
of  parliament ;  and  I  agree  also  with  those  who  thought 
the  treaty  fell  within  the  authority  of  the  act.  I  atn  sat- 
isfied with  the  treaty,  whether  with  or  without  the  act; 
but  I  contend,  that  neither  the  act  nor  the  treaty  had  in 
contemplation  to  make  the  Americans  aliens ;  and  that 
neither  one  or  other  of  those  instruments  has,  in  point 
of  law,  the  power  of  producing  such  an  effect.  I  raise 
no  question  upon  what  passed  in  parliament ;  if  the  par- 
liament approved  the  treaty,  they  left  us  to  draw  the 
inferences  and  make  the  construction  that  shall  appear 
to  belong  to  it. 

Fifthly,  and  lastly,  you  admit  there  are  difficulties  in 
deciding  that  "the  treaty  exempted  the  Americans  from 
their  allegiance,  and  excluded  them  from  their  rights  as 
British  subjects."  In  my  opinion,  these  difficulties  are 
made  and  increased  by  introducing  phrases  and  raising 


OF    THE    LAW    OV    NATIONS.  737 

constructions  upon  them,  without  looking  to  the  real 
proceeding  and  adhering  faithfully  to  the  letter  of  it. — 
You  talk  here  of  exempting  the  Americans  from  their 
allegiance :  Why  make  a  question  of  allegiance,  when 
the  king  does  not  claim  it  ?  And  what  consequences 
can  be  built  on  the  affirmative  or  negative  of  this  ques- 
tion 1  What  is  a  subject's  allegiance  worth  to  the  king, 
if  he  resides  in  America,  although  he  is,  bona  fide,  a 
native  of  London  1  It  is  worth  nothing.  And  if  he'  re1 
fuses  to  come  home,  what  does  the  law  say,  and  what 
did  the  parliament  do  in  a  like  case,  in  stat.  14  and  15 
Henry  VIII.  c.  4.*  ?  Allegiance  has  nothing  to  do 
with  the  treaty.  Allegiance  is  personal ;  the  treaty  is 
national  and  territorial.  The  treaty  regulates  land,  its 
metes,  and  its  bounds :  and  the  government  of  it  the 
treaty  leaves  and  transfers  to  others,  the  States  of  the 
country ;  the  persons  and  their  allegiance  remain  un- 
affected. Allegiance  is  general  or  special,  local  or  per- 
sonal ;  these  may,  and  do  often,  in  fact,  consist  together 
in  the  same  person ;  why  not.  then,  in  the  instance  of 
Americans  ? 

It  is  for  want  of  attending  to  this  modification  to  which 
allegiance  is  subject,  that  some  persons  started  the  ex- 
pedient which  you  here  mention,  and  which  seems  to  me 
to  contain  much  more  difficulty  in  it  than  the  one  it  was 
meant  to  cure.  You  agree  with  those  who  think  that 
such  Americans  as  "  after  a  reasonable  time  allowed  for 
election,  subsequent  to  the  ratification  of  the  treaty, 
settled  themselves  in  America,  and  chose  their  domicile 
there,  became  exempted  from  their  allegiance,  and  ex- 
cluded from  their  rights  as  British  subjects." 

*  Vid.  ant.  pa.  706. 
94 


738  OPINIONS    OP    EMINENT    LAWYERS. 

This  expedient  of  a  "reasonable  time,"  and  "  a  domi- 
cile," for  making  a  distinction  between  one  American 
and  another,  seems  to  me  to  be  a  greater  departure  from 
principle,  than  any  of  the  other  anomalies  that  I  have 
observed  in  their  argument.  There  are,  I  admit,  legal 
considerations  that  depend  upon  a  man's  local  character, 
which  may  be  changed  by  change  of  residence,  and 
therefore  must  be  ascribed  to  his  own  act  and  choice. — 
But  those  are  in  cases  of  such  a  character  as  is  capable 
of  being  acquired,  and,  as  it  is  acquired,  so  it  may  be 
lost,  by  his  own  act ;  such  is  a  man's  local  and  national 
character.  But  the  character  of  natural  subject,  which 
a  man  is  born  to,  and  to  which  is  applied  the  maxim, 
nemo  pol>-st  exuere  patriam  ;  to  lay  it  down  as  a  position 
of  law,  that  it  is  in  a  man's  own  choice  to  decide  wheth- 
er he  will  put  off  this  character  or  retain  it,  and  that 
his  continuing  his  native  character  depends  upon  alter- 
ing his  domicile  ;  this  is,  surely7  one  of  the  most  singu- 
lar novelties  that  ever  was  attempted  in  the  face  of  an 
acknowledged  principle  to  the  contrary.  For  which 
principle  I  must  again  refer  to  Calvin's  case,  the 
whole  doctrine  and  result  of  which  is,  that  the  per- 
sonal rights  of  a  subject  to  which  he  was  born,  re- 
main through  life,  and  through  all  circumstances,  un- 
changed and  indelible  ;  and  that  allegiance,  and  native 
rights  arise  wholly  from  birth,  and  do  not  depend  on 
actual  local  sovereignty  for  their  continuance. 

Such  a  device  as  this  is  not  interpreting  the  law,  but 
making  it.  A  temporizing  scheme,  reduced  to  an  act  of 
parliament,  for  settling  this  national  question,  might 
very  well  be  so  modelled :  it  would  be  a  half  measure 
that  probably  would  be  thought  reasonable  enough  ; 
but  this  very  character  of  it  is  sufficient  to  discredit  it 


OF    THE    LAW    OF    NATIONS.  739 

as  a  piece  of  juridical  reasoning:  it  is  void  of  all  steadi- 
ness of  principle  ;  it  has  not  even  in  it  the  consistency 
of  the  former  arguments  and  conclusions,  that  "  relin- 
quishing the  sovereignty,"  that  "  acknowledging  the 
states  to  be  free,"  &c.  &c.  implied  that  there  was  an 
end  of  allegiance  and  of  British  rights.  The  device 
was,  I  believe,  contrived  by  those  who  found  they  could 
not  maintain  the  above  bold  conclusions,  in  opposition 
to  acknowledged  principles  of  law ;  and,  desirous  of 
doing  something,  they  were  content  to  lower  their  no- 
tions to  a  medium  between  the  two,  which  would  sound) 
as  they  thought,  reasonable  in  the  effect  of  it,  however 
unsupported  it  might  be  in  principle. 

So  much  for  this  half  measure  of  "  reasonable  time," 
arid  "  domicile,"  which  I  have  had  occasion  before  to  re- 
probate. I  hope  the  difficulties  in  point  of  law,  with 
which  this  arbitrary  notion  is  pregnant,  will  be  avoided  : 
if  so,  the  other  difficulties  in  point  of  fact,  which  you 
mention,  will  be  escaped,  namely,  the  necessity  of  en- 
quiring in  every  particular  claimant's  case,  when  and 
how  he  was  domiciliated  in  America,  or  in  this  king- 
dom. 

Upon  the  whole  I  see  nothing  to  distinguish,  in  a  le- 
gal view,  the  condition  of  Americans  from  that  of-  other 
British  subjects  residing  in  a  ceded  country;  nothing 
done  by  the  king,  nothing  by  parliament,  nothing  by 
themselves :  and  it  seems  to  me,  the  person  in  question 
coming  to  this  country  is  still  entitled  to  the  privileges 
of  a  natural-born  subject. 
Jan.  17,  1809. 

January  21,  1809. 

An  authority  is  quoted  for   the   notion  of  "  optional 
domicile."     It  is  said  that   Chief  Baron  Eyre  has  been 


740  OPINIONS    OF    EMINENT    LAWYERS. 

heard,  over  and  over,  to  lay  it  down,  that  Americans 
domiciled  in  the  United  States  could  not  be  deemed 
British  subjects,  so  as  to  navigate  a  British  ship.  There 
may  be  good  reason  for  such  an  opinion.  The  Chief 
Baron  might  have  considered  that,  under  the  order  of 
council  for  carrying  on  the  American  trade,  (it  was  be- 
fore statute  37  Geo.  III.  c.  9-7.)  American  ships  were 
to  be  navigated  by  subjects  of  the  United  States.  He 
might  consider  domiciliation  as  the  best  evidence  of  be- 
ing an  American  subject.  It  might  appear  to  him  rea- 
sonable, that  such  persons  being  allowed  to  navigate 
American  ships,  as  American  subjects,  they  should  not 
be  recognized  occasionally  as  British  subjects,  when 
navigating  a  British  ship.  Such  a  discrimination  might 
appear  to  him  to  promote  the  principle  of  our  naviga- 
tion system :  as  no  ships  are  allowed  to  be  British-built, 
unless  built  in  the  king's  dominions ;  it  might  seem  to 
him  an  appropriate  construction,  to  exclude  from  the 
character  of  British  mariners,  all  those  who  chose  to 
domiciliate  themselves  in  America,  then  become  a 
foreign  country. 

Be  it  so  ;  but  can  they  report  to  us,  the  Chief  Baron  . 
ever  laid  it  down  that  persons  who  so  made  themselves 
Americans,  by  residing  in  the  United  States,  might  not 
afterwards  be  deemed  British  subjects  and  British  ma- 
riners, by  changing  their  domicile  to  some  part  of  the 
king's  dominions?  Is  there  any  thing  in  the  principle 
of  domiciliation,  which  will  enable  them  to  say  that 
the  first  choice  is  final,  and  the  character  thereby  ac- 
quired cannot  be  put  off?  Is  there  not  as  much  efficacy 
in  a  second,  a  third,  or  any  other  subsequent  choice  of 
domicile  ?  And  do  not  such  persons  become  lolics  quoties 
successively  British  or  American  1  And  if  not,  why  not  ? 


OP    THE    LAW    OP    NATIONS.  741 

If  their  notion  is  grounded  on  any  principle,  they 
should  be  able  to  explain  to  us  why  the  first  choice,  of 
domicile  precludes  the  advantage  to  be  derived  from 
any  subsequent  choice. 

Such  are  the  queries  that  may  be  put  on  this  piece 
of  exchequer  law,  confined  only  to  the  very  peculiar 
case  of  navigation  and  of  mariners.  There  still  remains 
the  principal  query,  why  should  such  a  construction  on 
the  navigation  act,  supported  as  it  is  there  by  the  speci- 
al circumstances  of  the  case,  be  adopted,  and  made  to 
govern  in  the  general  question  of  natural-born  subject, 
where  there  is  nothing  similar  to  make  the  application, 
of  it  fit  or  colorable  ?  Certainly  domiciliation,  or 
residence,  temporary  ar  permanent,  never  made  a 
part  of  the  consideration  whether  a  person  is  a  natural- 
born  subject ;  but  simply  this  was  the  question,  whether 
he  was  born  within  the  king's  allegiance  1  However, 
if  domiciliation  weighs  any  thing,  the  claimant  in  this 
case  is  resident  here,  and  professes  to  make  this  king- 
dom his  future  residence.  Perhaps  the  Chief  Baron, 
upon  a  habeas  corpus,  would,  in  the  case  of  this  claim- 
ant, have  deemed  his  present  residence,  and  his  determi- 
nation declared  to  reside  here  in  fnture,  to  be  a  suffi- 
cient choice  of  domicile  within  the  principle  of  his  ex- 
chequer decision  ;  perhaps  he  might  consider  this  case 
as  standing  on  different  grounds  from  the  exchequer 
case,  and  to  be  decided  on  general  principles,  without 
regard  to  domiciliation. 

We  are  so  uninformed  as  to  the    extent   of  what  the 
Chief  Buron  is  supposed  to  have  ruled  at  nisiprius,  that 
it  seems  to  afford  no  safe  ground  of  reasoning. 
Jan.  21,  1809. 

March  22,  1809. 


742  OPINIONS    OP    EMINENT    LAWYERS. 

I  have  been  desired,  by  a  great  lawyer,  to  look  at  the 
statute  dc  prerogative!,  regis,  ch.  12.  de  terris  J\ronnan- 
norurn.  I  suppose,  he  meant  this  should  prove  to  me 
that  on  King  John  losing  Normandy,  the  Normans  be- 
came thereby  aliens,  and  therefore  the  lands  holden  by 
them  in  England  escheated  to  the  king  ;  but  the  statute 
does  not  import  this,  nor  is  it  so  understood  by  Staun- 
forde.  On  the  contrary,  Staunforrle  understands  that 
the  Normans  still  continued  English  subjects,  and  were 
ad  fide  in  ulriusquc  r<'gis.  The  statute  expressly  speaks 
of  those  who  were  non.  ad  fideni  regis  angliT,  which 
must  be  such  as  were  born  after  the  severance  of  the 
two  countries  ;  and  the  design  of  the  statute  is  to  fix 
that  the  escheats,  in  the  case  of  such  pistnati,  accrued 
to  the  king  and  not  to  the  lord  ;  and  that  the  king  was 
to  grant  them  to  be  holden  of  the  lord,  by  the  same 
services  as  before. 

This  chapter,  therefore,  of  the  statute  ch  prerogfitiva 
regis  is  an  express  authority,  that  the  severance  of  Nor- 
mandy from  the  English  crown  did  not  make  the  in- 
habitants there  aliens,  though  their  children,  born  after 
the  severance,  were  aliens. 

This  authority  becomes  also  an  answer  to  another 
point  maintained  by  the  same  great  lawyer  ;  he  goes 
beyond  the  rest  that  I  have  had  to  contend  with,  except 
the  civilian,  and  he  holds  with  the  civilian,  that  the  in- 
habitants of  a  eeded  colony  become  thereby  aliens. — 
Yet  in  this  I  cannot  but  allow  there  is  consistency  ;  for 
the  principle  appears  to  me  to  be  the  same  :  those  who  call 
the  Americans  aliens,  ought  to  consider  the  inhabitants 
of  Florida,  ceded  at  the  same  time,  in  the  same  light ; 
and  those  who  consider  the  inhabitants  of  Florida  as 
not  deprived  of  their  personal  rights  of  Englishmen, 


•v: 


OP    THE    LAW    OF    NATIONS.  743 

ought  to  admit  the  American  claim  to  continue  natural- 
born  subjects.  Mar.  22,  1806. 

March  24,  1809. 

Perhaps  the  objectors  have  never  considered  the  per- 
sons to  whom  naturalization  and  denization  are  granted. 
In  both  cases,  in  the  act  of  parliament,  and  in  the  pat- 
ent, the  party  is  alleged  to  be  born  out  of  the  king's 
allegiance  ,  and  in  applying  for  either,  he  must  allege 
the  same  in  his  petition  ;  but  an  American  cannot  do 
this  with  truth.  What  then  is  to  be  the  conclusion  on 
the  peculiar  circumstances  and  situation  of  this  supposed 
alien?  Is  he  to  be  deemed  an  alien  beyond  all  other 
aliens,  that  is,  irredeemably  such  ?  Assuredly  he  is 
not  susceptible  of  denization  or  naturalization  in  the 
ordinary  course,  because  he  cannot  bring  himself  within 
the  description  which  alone  makes  him  the  object  of 
such  favor;  or  may  we  conclude  that,  not  having  the 
defect  which  is  to  be  supplied  by  such  grant,  he  is  al- 
ready in  possession  of  the  character  to  be  conferred  by 
it ;  in  other  words,  he  is  not  an  alien,  but  a  natural- 
born  subject  ? 

The  latter  appears  to  me  the  just  conclusion ;  and  I 
shall  accordingly  say  with  confidence,  that  there  is  the  au- 
thority of  the  lord-choncellor  in  cases  of  denization,  and 
of  the  two  houses  of  parliament  in  cases  of  naturalization, 
for  the  proposition  that  birth  out  of  the  king's  allegi- 
ance is  the  only  circumstance  which  constitutes  an  alien, 
We  may  be  sure  such  forms  would  not  have  been  settled 
and  constantly  acted  upon,  if  they  were  not  known  to 
be  required  by  the  general  law  of  the  land.  Indeed,  it 
is  nothing  more  than  the  definition  of  alien  laid  down 
in  all  the  books,  whether  elementary  or  practical;  the 
following  examples  are  sufficient : 


744  OPINIONS    OF    EMINENT    LAWYERS. 

Natural-born  subjects,  are  such  as  are  born  within  the 
dominion  of  the  crown  of  England ;  that  is,  within  the 
ligeance,  or,  as  it  is  generally  called,  the  allegiance  of 
the  king  ;  and  aliens,  such  as  are  born  out  of  it. — [Black- 
stone,  1.  book,  ch.  10.] 

An  alien  is  one,  who  is  born  out  of  the  ligeance  of  the 
king. — [Comyn's  Digest,  article,  alien.] 

An  alien,  is  one  born  in  a  strange  country. — [Bacon's 
Abridgment,  article,  alien.] 

And  thus  I  conlude   this  discussion,  as  I  began  it ; 
relying  upon   established  and   known  positions  of  law 
for  maintaining  juridical  truth  against  hypothesis  and 
the  speculations  of  political  reasoning. 
March  24,'  1809. 

(5.)  A  discourse  by  Mr.  J.  De  Witt,  concerning  Sur- 
inam. 

The  undernamed  counsellor,  the  pensioner  of  Holland, 
having  understood  by  the  ambassador  Temple^  that  the 
King  of  Great  Britain,  his  master,  had  not  been  entirely 
satisfied  with  the  answer  of  thfe  states-general  of  the 
united  provinces,  given  to  his  Majesty,  the  6th  of  June 
last,  upon  the  account  of  the  business  of  Surinam,  be- 
lieved it  his  duty  to  acquaint  the  said  ambassador,  that 
it  is  evident  and  notorious : — 

1.  That  the  colony  of  Surinam  is  possessed  by  their 
high  mightinesses,  in  their  proper  right,  with  all  the 
rights,  and  a  power  unlimited  of  superiority  and  sove- 
reignty, established  and  confirmed  by  these  words,  in- 
serted in  the  third  article  of  the  treaty  of  peace,  "cum 
plenario  jure  summi  irnperii,  proprietatis,  et  possession- 
is]"  and  by  consequence,  that  all  the  inhabitants  of  the 
same  colony  are  subjects  of  their  high  mightinesses,  pri- 
vately, as  to  the  exclusion  of  all  others. 


OP    THE    LAW    OF    NATIONS.  745 

2.  Also,  secondly,  that  by  virtue  of  the  capitulations 
which  are  found  to  have  been  made  between  the  sove- 
reign and  his  subjects,  none  can  form  any  pretence,  but 
only  the  said  sovereign  and  the  said  subjects,   recipro- 
cally ;  nor  can  any  other,  no,  not  he  or  those  who  be- 
fore the  date  of  such  capitulations  might  have  been  sov- 
ereigns to  the  same  subjects,  after  an  entire  cession  and 
confirmation  by  a  treaty  of  peace^  or  otherwise,  pretend 
any  right,  or  so  much  as  permit  himself  to  make  com- 
plaint of  the  breach  or  contravention  of  the  said  capitu- 
lations: so  far  are  they  from  a  power  of  demanding  a 
redress  or  any  reparation  to  be  made  to  them  for   the 
same. 

3.  That  what  is  already  said  is  not  only  conformable 
to  the  disposition  of  common  right,  but  also  to  the  judg1- 
ment  and  practice  of  all  kings,  states,  and  princes.    Fot 
example,  their  high  mightinesses  have,   by  their  arms, 
made  a  conquest  upon  the  king  of  Spain,  upon  the  towns 
of  Bois  le  Due,  Maestricht,  Breda,  &c.  and  yet  acquired 
not  possession  of  them,  but  upon  large  and  advantageous 
capitulations ;  and,  nevertheless,  after  the  full  and  entire 
acquisition  of  the  propriety  of  the  said  towns  and  places 
by  the  treaty  of  peace,  when  any  question  was  made 
about  the  explication  of  the  said  capitulations,  or  com- 
plaint made  of  want  of  execution,  the  said  lord,  the  king 
of  Spain,  never  undertook  (as  indeed  he  could  not)  to 
urge  their  high  mightinesses,  or  to  speak  to  them  about 
the  execution  of  their  capitulations. 

4.  The  king  of  France  possesses  in  like  manner  Lille, 
Doway,  Tournay,  &c.;  and  yet,  all  the  world  agrees,  the 
king  of  Spain  has  nothing  to  do,  since  his  entire  cession 
of  those  places  to  the  crown  of  France,  by  the  treaty  of 

peace  concluded  lately  at  Aix  la  Chapelle,  to  interest 
95 


746  OPINIONS    OP    EMINENT    LAWYERS. 

himself  for  the  execution  or  not  execution  of  the  capit- 
ulations which  were  made  upon  their  surrender,  and 
hath  yet  less  to  do,  to  make  any  quarrel  with  France 
upon  this  account.  But,  in  case  the  inhabitants  of  Ma- 
estricht,  Bois  le  Due,  Breda,  &c.  as  also  those  of  Lille, 
Doway,  Tournay,  &c.  judge  the  capitulations  are  broken, 
all  they  can  do  is  to  carry  their  complaints  and  peti- 
tions to  their  sovereigns,  viz :  to  their  high  mightinesses, 
and  to  the  king  of  France,  respectively;  otherwise,  they 
would  render  themselves  notoriously  guilty  of  the  crime 
of  rebellion,  if,  in  this  case,  they  should  address  them- 
selves to  the  king  of  Spain,  and  desire  his  succor  and 
intercession,  and  highly  offend  the  majesty  of  their  law- 
ful and  only  sovereign ;  as  also  the  king  of  Spain  would, 
On  his  side,  notoriously  violate  the  treaties  made  by  him, 
and  the  law  of  nations,  should  he  interest  himself  there- 
in, although  he  should  do  it  upon  his  own  proper  motion 
and  without  being  required  to  do  it ;  since  in  so  doing 
fee  would  still  attribute  to  himself  some  right  of 'superi- 
ority, or  at  least  of  protection  over  those  which  have 
quitted  his  protection  and  subjection ;  as  to  what  con- 
cerns the  possession,  by  the  right  of  war,  and  as  to  what 
concerns  the  propriety,  by  the  said  treaties  of  peace. 

5.  It  is,  without  all  dispute,  that  their  high  mighti- 
nesses are  obliged,  by  virtue  of  the  said  capitulations,  to 
let  the  inhabitants  of  Maestricht,  Bois  le  Due,  and  Bre- 
da, &c.  enjoy  the  free  power  to  transport  themselves 
from  thence,  without  any  hindrance,  into  what  other 
place  they  please,  as  also  to  carry  away  their  goods, 
iiioveables,  and  to  continue  the  propriety  and  possession 
of  their  immoveable  goods,  notwithstanding  their  re- 
move, or  else  to  sell  either  of  them  as  they  please. 

But  this,  notwithstanding,  if  their  high  mightinesses 


OF    THE    LAW    OF    NATIONS.  747 

think  fit  to  forbid  them,  or  to  hinder  one  or  other  of 
them ;  yet  doth  it  not  belong  to  the  king  of  Spain  to. 
complain  of  it  to  their  high  mightinesses,  nor  to  demand 
reparations  for  it:  moreover,  his  majesty,  by  so  doing, 
would  notoriously  wrong  their  high  mightinesses.  But 
the  said  inhabitants  have  this  only  way  left  to  them,  to 
address  themselves  to  their  high  mightinesses,  as  to 
their  lawful  and  only  sovereign,  by  their  complaints  and 
petitions. 

6.  The  colony  of  the  New  Netherlands  has  been  like- 
wise subjected  to  the  power  of  his  majesty  of  Great 
Britain,  with  a  very  large  capitulation,  and  it  is  proba- 
ble those  of  Cabo  Corco,  upon  their  surrender,  have  also 
made  some  stipulation.     Nevertheless,  their  high  mighti- 
nesses well  know  that  at  present,  since  the  conclusion  of 
the  treaty  of  Breda,  they  are  not  permitted  to  enter  in-; 
to  dispute  with  the  king  of  Great  Britain  upon  the  ae- 
count  of  the  capitulation  of  the  New  Netherlands,  or  by 
virtue  thereof  to  demand  any  favor  for  those  who  were 
their  subjects  before  the  said  capitulation ;  but  in  case 
those,  the  said  formerly  subjects  to  their  high  mighti- 
nesses, and  at  present  subjects  to  the  said  lord,  the  king 
of  Great  Britain,  find  that  they  have  been  formerly,  or 
shall  be  for  the  future,  ill-treated,  contrary  to  their  ca-i 
pitulations,  they  have  and   shall  be  permitted  to  have 
recourse  to  his  majesty,  who  is  now  their  sovereign,  and 
to  demand  redress  from  him. 

7.  By  what  has  been  said,  it  is  hoped  from  the  usual 
equity  and  prudence  of  the  said  lord,  the  king  of  Great 
Britain,   that  his  majesty  may,  and  will  well  compre- 
hend, that  it  belongs  not  to  him,  nor  hath  he  any  right 
to  enter  into  any  dispute  with  their  high  mightinesses, 
upon  the  explication  and  obligation  of  the  capitulation 


748  OPINIONS    OF    EMINENT    LAWYERS. 

with  Surinam,  or  to  complain  of  any  pretended  want  of 
execution  thereof. 

8.  And  since  that  most  kings,  princes,  and  states,  posr 
sess  countries,  towns,  and  places  very  considerable,  which 
had  formerly  other  sovereigns,  and  which  had  been  sub- 
jected by  the  said  kings,  princes,  and  states,  either  volr 
untarily,  or  by  force  of  arms,  under  certain  agreements, 
conditions,  or  stipulations ;  and  that  the  said  possessions 
have  been  since  confirmed  to  them  by  solemn  treaties 
made  with  the  said  first  sovereigns;  the  whole  world 
would  be  disturbed  and  turned  upside  down,  if  the  said 
sovereigns  should  still  form  their  pretensions,  and  plead 
that  they  had  a  right  of  protection  upon  their  former 
subjects,  to  obtain  from  them  the  execution  of  the  arti- 
cles stipulated  for  in  the  said  capitulations  :  so  that  it 
cannot  be  justified  in  this  controversy,  what  is  held  to 
the  contrary,  or  what  is  excepted  upon  what  has  been 
before  applied,  viz :  that  at  the  end  of  the  said  third  ar- 
ticle of  the  treaty  of  Breda,  were  added  these  words, 
11  eum  prorsus  in  modum  quo  eo  die  ^  Maii  proxime  elapsi- 
ocGupaverat  tt  possedit"  as  if  by  these  words  was  meant 
something  more  than  the  extent  of  the  possession,  which 
one  of  the  two  contractors  effectually  had  upon  the  day 
there  mentioned ;  or  as  if  it  might  be  maintained,  that 
the  words  limited  also  the  power  of  the  possessors  for 
the  future,  which  is,  nevertheless,  notoriously  contrary 
to  their  true  sense ;  and  it  appears  yet  evidently  to  be- 
so,  upon  what  passed  in  the  very  negociation  of  the 
peace ;  for  since  the  same  article  determines  very  clearly 
and  expressly  concerning  the  right  of  the  possessors  for 
the  future,  that  it  should  be  an  absolute  and  unlimited 
sovereignty  in  these  words,  "  conventum  pr&terea  e-st,  ut 
utraque  jam  designatarum  partium,  cum  plenario  jura 


OF    THE    LAW    OF    NATIONS.  749 

siimmi  imperii,  proprietatis,  et  possess ioni-s,  omnes  ejus- 
modi  terras,  insulas,  urbes,  muninienta,  loca,  et  colonias 
teneat  et  passed  eat  in  posterum,  quotquot  durante  hoc  hel- 
lo, aut  ante  lioc  Vellum,  tdlis-  retro  temporibuft,  vi  et  ar- 
mis,  aut  quoquo  modo,  ab  altera  parte  occupavit  et  reti- 
nuit,"  one  cannot  believe,  that  the  said  words,  " eum 
prcwsus  in  modum,  c&c."  do  overthrow  or  limit  the  right 
which  had  been  already  acquired  and  fixed  by  the  words 
"plenario  jure  summi  imperii,  &c.;n  but,  forasmuch  as 
the  extent  of  the  possession  had  been  comprized  so  gen- 
erally in  the  words  "quotquot  durante  hoc  bello,  &c" 
sinCe  that  the  parties  were  agreed  among  themselves, 
that  the  places  which  had  been  or  should  be  taken  after 
the  $  of  May  should  be  restored,  it  was  evidently  neces- 
sary that  the  said  general  extent  of  possessions  should 
be  limited  and  restrained,  by  another  more  particular 
clause,  only  to  such  possessions  as  it  should  appear  either 
party  had  the  said  ^  May,  without  extending  them  any 
farther,  or  pretending  by  virtue  of  the  said  treaty  any 
-right  beyond  the  limits  of  the  possessions  which  it 
should  appear  either  of  the  said  parties  had  the  said  ^ 
of  May,  which  is  thatwhich  appears  to  be  expressed  by 
the  words  there  added,  i(eum  prorsus  in  modum,  quo  eo 
die  20  Mail  procoimeelapsi,  occupaverat  et  possedit"  where 
it  may  be  particularly  observed,  that  the  words,  "  eum 
prorsus  in  modum,  quo  eo  die  ^  Mail,  proxlme  elapsi,  oc- 
-cupaverat,"  cannot  any  way  be  applied  to  any  right  or 
to  any  conditions,  by  virtue  where  of  either  one  or  the 
other  should  that  day  possess,  but  only  to  the  manner  or 
extent  or  to  the  limits  of  the  occupation ;  that  is  to  say, 
what  countries,  or  what  places,  and  how  far  it  appear- 
ed, that  one  or  the  other  party  should  have  in  his  power, 
the  said  ^  of  May.  For  to  give  any  other  sense  to  the 


750  OPINIONS    OP    EMINENT    LAWVERS. 

said  words,  it  were  necessary  to  omit  wholly  the  word 
"  occupaveral"  and  instead  of  the  words,  ^eum  prorsus 
in  modum"  to  have  put  in,  "eo  prorsus  jure;"  and  yet, 
even  this  way,  we  should  meet  with  a  contradiction  and 
notorious  absurdity,  viz:  that  on  one  side  countries  and 
places  should  be  given  up  with  a  right  of  absolute  and 
unlimited  sovereignty,  and  011  the  other  side,  and  as  to 
the  same  rights,  as  the  possessors  had  possessed  them  in 
the  20  of  May ;  for,  if  by  the  latter  words  was  understood 
any  thing  less  than  a  right  of  an  unlimited  sovereignty, 
they  must  necessarily  fall  into  a  contradiction  and  mani- 
fest absurdity. 

But  all  this  will  appear  with  much  greater  evidence 
if  we  well  consider  what  passed  at  Breda  during'the  ne- 
gociation  of  the  peace,  and  particularly  that  when  it  was 
insisted  upon,  on  the  behalf  of  their  high  mightinesses, 
for  all  that  had  been  taken  by  either  of  the  parties,  un-- 
til  the  knowledge  of  the  peace  should  arrive  at  all  the 
territories  of  both  parties,  either  by  proclamation,  or 
otherwise,  or  at  least,  till  the  day  of  signing  the  said* 
treaty;  they  ordered  their  intention  to  be  expressed', 
and  to  be  put  in  the  hands  of  the  mediators  the  30th  of 
May,  in  the  same  year,  1667,  in  these  words,  "Conven- 
tumprzterea  est,  ut  utraque  jam  designatarum  partium, 
cum  plenario  jure  summi  imperii,  proprietatis,  et  posses- 
sionis,  omnes  ejasmodi  tenja-s,  insulas,  urbes,  munimenta, 
loca  et  colonias  teneat  et  possideat  in  posterum,  qnotquot  • 
durante  hoc  bello,  aat  ante  hoc  bellam  ullis  retro  Umpor- 
ibus,  vi  et  armis,  ant  quoquo  modo,  ab  altera  parte  occu- 
pavit  et  retinuit,  cum,  prorsus  in  modum,  quo  ea  possidebit 
tnnc  teniporis,  cum  prasenti  pads  tractatai  subscribetur" 
which  last  words  having  a  relation  to  a  time  to  come, 
and  to  things  which  might  happen  after  the  date  of  the 


OF    THE    LAW    OF    NATIONS.  751 

said  proposition,  could  not  contain  any  thing  but  a  lim- 
itation or  designation  of  the  possessions,  in  such  state  as 
they  should  be  found  at  the  day  of  the  signing  of  the 
treaty ;  and  so,  according  to  the  precedent  words,  which 
are  clear  and  express,  the  possessors  should  continue  to 
enjoy,  with  an  absolute  and  unlimited  sovereignty,  all 
those  countries  and  places  which  he  had  in  his  power  on 
the  day  of  the  said  signing. 

But,  forasmuch  as  at  the  instance  of  the  English  am- 
bassador the  said  term  was  anticipated,  and  brought 
back  to  a  time  even  already  past-,  in  which  regard,  the 
said  ^  of  May,  was  in  the  end  agreed  to,  not  only  these 
words,  "  tune  temporis,  cum  presvnti  pads  tractului  suh- 
scribetu?',  were  changed,  to  put  in  the  following  ones, 
"28  die  Mali  proxime  clapsif  and  the  word  " possidebit" 
turned  into  that  of  "po-ssedit"  but  also,  because,  by  the 
said  change,  the  said  clause  rendered  the  business  ap- 
plicable to  a  time  past,  and  affairs  already  done ;  and, 
consequently,  that  hereafter  it  might  be  thought  that 
-the  said  clause,  according  to  the  intentions  of  the  par- 
ties, might  be  applied  to  the  right  and  to  the  conditions 
by  which  they  were  rendered  master  of  such  a  conquered 
country,  or  to  things  of  the  like  nature,  and  not  proper- 
ly and  only  to  the  occupation  and  to  the  conquest  itself, 
to  take  off  all  ambiguity,  the  word  "  occujiaverat"  was 
added,  by  which  was  prevented  all  that  could  be  im- 
agined of  any  other  interpretation :  as  it  is  also  noto- 
rious that  the  English  plenipotentiaries^  in  causing  the 
alterations  of  their  wordSj  had  no  other  thought  but  only 
to  anticipate  the  said  term,  and  not  to  take  any  thing 
from  the  treaty  which  should  limit  the  absolute  soVe= 
reign ty  of  the  possessor ;  the  proposition  which  they 
made  thereupon,  and  which  was  delivered  in  writing  to 


752  OPINIONS    OF    EMINENT    LAWYERS. 

the  plenipotentiaries  of  this  state  by  the  mediators  in 
solemn  conference,  July  7$  1667;  not  containing  any 
thing  from  whence  can  be  directly  or  indirectly  gather- 
ed any  other  sense.  The  formal  terms  of  the  said  pro- 
position are  these :  "  Ornnes  regiones,  terrce,  insulx,  colo- 
nies, civitates,  oppida^  prcesidia,  propugnacula,  cceteraque 
munimenta  qua  ab  alterutra  parte,  ante  26  diem  Martil 
anno  presenti  1667  capta  sunt,  tt  codem  die  in  illius  partis 
possessions  remanseruntj  penes  cos  maneanl,  a  quibus  sic 
capta  et  posscssa  sunt,  cum  plenario  jure  summi  imperil, 
proprietatis,  et  possessions"  words  in  which  no  ambigui- 
ty at  all  is  to  be  foundj  nor  any  other  thing  from  whence 
can  be  raised  any  conjecture  that  the  intention  of  the 
said  English  plenipotentiaries  was  to  stipulate,  or  cause 
to  be  inserted  into  the  treaty  which  was  negociating, 
anything  whatsoever  which  might  derogate  from  the 
absolute  sovereignty  >  or  to  a  privative  disposition  of  the 
possessors  of  the  countries  and  colonies  which  one  of  the 
parties  gives  np  by  the  said  article.  So  also  nothing 
past,  neither  before  nor  since,  upon  this  subject,  between 
the  plenipotentiaries  of  either  side^  neither  by  word  of 
mouth  nor  writing,  which  can  persuade  us  that  they 
had  this  intention  or  any  thing  near  it ;  because,  they 
only  by  a  joint  agreement,  fixed  the  ^  °f  May,  the  term 
which  the  English  plenipotentiaries  demanded,  to  the 
26th  of  March,  and  the  plenipotentiaries  of  their  high 
mightinesses,  to  the  day  of  signing ;  so,  that  in  this  re- 
spect, nothing  was  capitulated  between  England  and  this 
state,  that  was  extraordinary  nor  out  of  the  road  which 
was  usually  followed  by  kingSj  princes,  and  states  ;  but 
every  one  was  left  to  an  absolute  and  privative  disposi- 
tion, according  to  the  order  and  custom,  upon  all  places 
conquered  and  given  up,  as  also  upon  all  their  inhabit- 
ants. 


OF    THE    LAW    OP    NATIONS.  753 

And  thus,  in  regard  of  the  capitulations  which  might 
have  been  made,  or  the  conditions  which  have  been 
agreed  to  upon  their  conquest,  they  cannot  have  acquir- 
ed, nor  can  they  so  much  as  pretend  to  any  right  by  it, 
but  only  by  making  remonstrances  and  petitions,  as  of 
subjects  to  their  sovereign,  as  without  doubt  the  king 
of  Great  Britain  and  his  ministers  would  have  under- 
stood it,  if  their  high  mightinesses  had  endeavoured  to 
raise  differences  with  his  majesty  about  the  explication 
and  execution  of  the  capitulations,  made  upon  the  con- 
quest of  New  Belgia,  and  the  town  of  New  Amsterdam, 
with  the  forts  and  places  thereon  depending. 

For  these  reasons,  we  expect  it  from  the  most  renown- 
ed equity  of  his  majesty,  that  he  will  look  upon  it  as 
an  effect  of  the  discretion,  civility,  and  friendship  of 
their  high  mightinesses,  whatsoever  they  have,  from  time 
to  time,  disputed  with  his  ministers,  and  declared  in  the 
answer,  which  hath  been  above  spoken  of,  concerning 
the  expounding  and  execution  of  the  capitulations  of 
Surinam,  as  they  will  also  be  always  ready  to  make  it 
known  to  his  majesty  and  his  ministers,  that  they  will 
not  be  less  diligent  in  the  punctual  -observation  and  ex- 
ecution of  all  their  promises  to  their  own  subjects  than 
they  shall  be  of  that  to  which  they  are  formally  obliged 
by  the  sclemn  treaties  made  with  other  kings,  princes, 
and  states  :  they  also  hope  it,  from  the  so  much  renown- 
ed equity  and  discretion  of  his  majesty,  that  he  will 
not  look  upon  these  explanations  and  declarations  other- 
wise than  as  they  are  here  said  ;  and,  that  neither  from 
hence,  nor  from  any  precedent  treaty,  he  will  draw  any 
consequence,  as  they  gave  him  any  right  or  action  against 
their  high  mightinesses  ;  and  the  said  counsellor,  pen- 
sioner of  Holland,  desires  the  said  ambassador  Temple, 
96 


754  OPINIONS    OP    EMINENT    LAWYERS. 

that  he  would  maturely  consider  the  abovesaid,  accord- 
ing to  his  accustomed  equity  and  that  he  would  so  well 
inform  the  king  of  Great  Britain,  his  master,  that  here- 
after there  may  not  be  any -further  difference  upon  this 
point,  between  his  majesty  and  their  high  mightinesses. 
Given  at  the  Hague, 

July  2, 1669.  JEAN  DE  WITT. 

An  answer  to  Mr.  de  Witt's  paper,  concerning  Suri- 
nam. 

My  Lord ; 

As  there  is  great  matureness  in  the  discourse  of  my 
lord  de  Witt,  and  much  strength  of  argument  in  what 
he  hath  delivered  in  that  paper,  so  the  main  of  its  force 
doth  seem  partly  to  lie  in  the  equal  right  granted  by 
him  to  his  majesty,  in  the  county  of  Manhatous,  as  is 
desired  for  Surinam,  and  partly  in  his  allegation  of  mat- 
ter of  fact ;  and,  therefore,  the  substance  of  all  my  lord 
de  Witt's  managment  of  this  matter,  concerning  Suri- 
nam, may,  as  I  humbly  conceive,  be  reducible  to  two 
heads  only. 

The  first,  drawn  de  jure  gentium  from  the  custom  of 
all  treaties  and  the  rights  following  thereupon,  which, 
as  to  the  matter  in  hand,  admits  but  of  two  cases,  viz : 
either  where  a  country,  province  or  city  is  taken  by 
articles  made  at  the  surrender  of  the  said  places,  no 
after-capitulation  being  at  all  made  for  the  said  places 
with  any  sovereign,  but  the  places  absolutely  held  by 
virtue  of  the  said  surrender,  which  case  is  sufficient  for 
the  acquiring  of  a  possession* 

The  second,  where  any  country,  province,  or  city  is 
taken  by  articles  or  conditions,  made  at  the  said  surren- 
der, an  after-capitulation  for  the  cession  and  reliction  of 


OF    THE    LAW    OP    NATIONS.  755 

all  rights  or  pretence  to  the  said  places,  made  by  the 
state  receiving  the  said  surrender,  and  the  crown  that 
had  the  former  sovereignty  of  the  said  places,  which- 
cession  conduces  to  settle  a  right  for  ever  after  the  said 
cession,  and  which  last  is  granted  to  be  the  present  case 
of  Surinam,  on  the  part  of  the  Dutch,  and  of  the  Man- 
hatous,  equally  on  the  part  of  the  English.  In  both 
which  cases,  the  lord  de  Witt  doth  frankly  grant,  that 
the  said  articles  and  conditions,  in  honor,  justice,  and 
conscience,  ought  to  be  strictly  observed  and  inviolably 
kept  with  the  said  inhabitants,  by  that  state  that  hath 
acquired  the  said  plenary  possession  and  sovereignty  of 
them,  as  what  is  but  the  indubitable  and  perpetual  right 
of  the  said  inhabitants, 

But  that  which  my  lord  de  Witt  insists  upon,  and 
principally  contends  for,  is,  that  after  the  said  cession  or 
reliction  of  the  sovereignty  of  the  place  to  any  state  is 
past,  the  dispensing  of  that  justice,  due  to  the  said  in- 
habitants,  by  virtue  of  any  former  treaty  or  articles  of 
surrender,  doth,  not  only  singly,  but  exclusively  belong 
to  the  right  of  the  said  state  who  is  present  possessor 
of  the  said  place,  as  an  inseparable  branch  or  part  of  the 
sovereignty  j  and  that  there  lieth  neither  any  right  of 
appeal  in  the  inhabitants  of  the  said  places  so  surrender- 
ed, nor  so  much  as  right  of  mediation  or  intercession, 
and  much  less  of  judgment  and  arbitration  in  him  that 
was  the  former  sovereign  ;  although  the  present  sove- 
reign of  the  said  places  should  either  fail  of  observing 
the  said  articles,  or  should  do  any  injury  to  the  said  in- 
habitants, and  therefore  though  the  English  at  Surinam 
have  several  undeniable  rights,  which  do  belong  to  them 
by  virtue  of  the  articles  made  by  them  at  the  surrender 
of  the  said  place,  and  such  as  they  may  in  justice  ex- 


756  OPINIONS    OF    EMINENT    LAWYERS. 

pect  to  be  made  good  to  them  ;  the  judgment,  neverthe- 
less, of  the  rights,  with  the  due  dispensing  and  adminis- 
"tering  of  them,  is,  since  the  general  articles  of  peace, 
so  much  and  so  exclusively  the  right  of  the  states-gen- 
eral, as  the  said  English  neither  can,  may,  nor  of  right 
ought  to  apply  themselves  to  any  other  than  the  said 
states-general  for  the  making  good  of  them  j  nor  hath 
his  majesty  any  right  now,  nor  any  color  of  right,  to 
become  a  mediator  or  intercessor  on  the  behalf  of  the 
said  inhabitants,  his  majesty  having  by  the  articles  at 
Breda  relinquished  the  sovereignty  of  the  said  place 
wholly  to  the  states-general. 

And  this  assertion  of  the  lord-  de  Witt's  he  doth  en- 
deavor to  enforce  by  the  precedent  of  the  town  of  the 
Burse,  and  Maestricht,  and  other  places  taken  in  the 
war  between  the  Spaniards  and  them,  not  without  con- 
ditions or  articles  of  surrender,  and  since  relinquished 
in  point  of  sovereignty  to  them  by  the  general  treaty 
at  Munster  ;  since  which  treaty,  therefore,  as  the  inhabi- 
tants of  Burse,  or  Maestricht.  can  have  no  right  to  ap- 
pLy  themselves  to  the  king  of  Spain  for  the  remedying 
of  any  injury  or  wrong  that  might  be  offered  them  by 
the  states-general  in  their  non-performance  of  the  said 
articles;  so,  neither  can  the  king  of  Spain,  by  virtue  of 
his  former  sovereignty,  so  much  as  interpose  on  their 
behalf  with  the  said  states-general,  even  though  alt  the 
said  conditions  should  be  violated  that  had  been  former- 
ly made  with  them. 

Secondly,  he  enforceth  it  from  the  instance  of  Flan- 
ders, as  now  held  by  the  king  of  France,  upon  the  trea- 
ty at  Aix  la  Chapelle,  where,  though  the  inhabitants 
have  many  rights  reserved  to  them  upon  the  surrender 
made  by  them,  yet  the  observance  or  non-observance  of 


OF    THE    LAW    OP    NATIONS.  757 

the  said  rights,  or  of  any  of  the  articles  or  conditions 
made  with  them,  is  equally  as  much  at  the  pleasure  of 
the  king  of  France,  since  the  king  of  Spain's  relinquish- 
ing his  dominion  to  them,  as  it  would  have  been  had 
he  held  them  merely  by  virtue  of  his  conquest  or  ob- 
taining of  them  without  any  after  capitulation ;  and, 
therefore,  though  the  king  of  France  be  in  honor  and 
justice  bound  to  conserve  the  said  conditions  and  articles 
made  with  the  inhabitants  of  Flanders ;  yet  if  he  shall 
neglect  it,  or  do  any  thing  to  the  contrary  of  it,  the 
king  of  Spain,  nevertheless,  cannot  interpose  in  it,  nor 
can,  upon  any  such  injury  as  shall  be  offered  them,  pre- 
tend to  any  right  to  become  a  mediator  and  much  less 
an  arbitrator  for  them. 

Thirdly,  he  enforceth  it  from  the  general  inconveni- 
ences that  must  follow  on  all  treaties,  dispositions,  and 
translations  of  the  sovereignty  of  places,  if  the  places, 
once  so  conceded  or  relinquished,  should  have  their  ju- 
risdiction or  dominion  so  mixed,  as  that  any,  beside  the 
present  sovereign  of  them,,  should  challenge  a  right  of 
interposition,  mediation,  or  arbitration,  by  virtue  of 
their  prior  right  ot  the  sovereignty  to  them ;  seeing  if 
this  should  be  once  admitted,  there  could  never  be  any 
peace,  or  any  end  put  to  the  settlement  of  the  sovereign- 
ty or  dominion  of  them. 

Fourthly,  he  enforceth  it  from  an  argument  (a  part) 
that,  seeing  by  the  same  articles  which  have  been  made 
with  his  majesty  at  Breda,  the  Dutch  have  relinquished 
their  sovereignty  to  the  Manhatons  and  the  whole  region 
of  it :  the  states-general,  therefore,  neither  can  nor 
ought  to  interpose  for  the  inhabitants  of  the  said  New 
Netherlands,  in  reference  to  any  articles  or  conditions 
made  formerly  with  them,  or  to  the  performance  of  them,, 


758  OPINIONS    OP    EMINENT    LAWYERS. 

but  ought  to  leave  the  whole  dispensing  of  that  right 
to  the  proper  jurisdiction,  power,  and  sovereignty  of 
his  majesty,  and  that  without  any  interposition  or 
mediation  on  their  part,  though  his  majesty  should  think 
fit  to  violate  all  the  said  articles  or  conditions  with  them. 

All  which  arguments,  my  lord,  are  so  strongly  found- 
ed, and  so  advisedly  laid  down,  that  I  see  not  at  present 
what  can  be  said  against  them,  if  we  shall  admit  the 
sovereignty  of  the  said  colony  to  be,  by  virtue  of  the 
said  articles  of  Breda,  really  and  plenarily  relinquished 
to  them. 

The  only  difference  I  can  possibly  discern  in  this  case 
of  Surinam  is,  and  must  be,  therefore,,  whether  the  said 
sovereignty  of  Surinam  be  as  perfectly  and  absolutely 
relinquished,  by  the  said  treaty  at  Breda,  to  the  Holland^ 
er,  as  the  Burse  was>  and  those  other  places  before 
named,  which  is  the  next  part  or  head  of  the  said  paper. 

Only  by  the  way,  my  lord>  inasmuch  as  the  States  of' 
Zealand  do  pretend  to  the  sovereignty  of  Surinam,  and 
seem  not  to  allow  of  an  appeal  to  the  States-general^ 
though  it  was  the  States-general,  and  not  the  States  of 
Zealand,  to  whom  the  said  country  was  by  the  articles 
of  general  peace  delivered ;  it  must  of  necessity  create 
not  only  a  great  difficulty,  but  a  great  disadvantage  to, 
the  inhabitants  of  Surinam,  who  may  by  this  means  be 
much  defeated  of  what  is  the  proper  right  of  them,  un-^ 
less  the  States-general  shall,  as  in  reason  they  ought, 
assert  their  plenary  jurisdiction  and  sovereignty  over 
them,  and  give  not  only  countenance,  but  leave,  to  ap^ 
ply  th.emselves  to  them,  which  is  the  utmost  I  can  see 
his  majesty  can  request  on  the  behalf  of  them  ;  admit-- 
ting  the  right  of  absolute  sovereignty  really  to  belong 
to  them. 


OP    THE    LAW    OP    NATIONS.  759 

The  next  principal  head,  therefore,  of  my  lord  de 
Witt's  paper,  is  to  clear  the  absolute  right  of  sovereignty, 
and  to  remove  the  objection  that  is  made  to  it  by  his 
majesty,  from  these  words  of  the  treaty,  "  eum  prorsus 
in  modum,  quo  eo  die  Mali  }£>  proxime  elapsi,  occupaverat 
<£  posscdit"  which  we  english,  a  and  that  altogether, 
after  the  same  manner  as  they  had  gotten  and  did  pos- 
sess them,  on  the  ^  day  of  May  last,"  which  words  are 
therefore  contended  for,  by  us,  to  be  a  qualification  or 
restriction  of  that  cession  or  reliction  which  is  made 
by  the  said  treaty  of  the  sovereignty  of  the  said  place, 
and  are  urged  by  us,  as  it  seems  by  those  words,  that 
they  are  obliged  to  hold  the  said  place  after  no  other 
manner  in  point  of  jurisdiction  or  dominion  than  as  they 
were  possessed  of  it  on  May  $.  which,  as  we  truly  allege, 
they  were  by  virtue  of  those  articles  only  which  were 
made  with  the  inhabitants  of  the  colony  at  the  surren- 
der of  it ;  and  this  I  must  freely  confess  to  your  lord- 
ship, I  always  took  to  be  not  only  the  genuine  and 
natural,  but  the  indubitable  sense  and  intent  of  the  said 

words. 

But  these  words,  as  they  are  thus  applied  by  us  to  d, 

qualification  or  restriction  of  the  plenary  right  of  sove^ 
reignty  and  jurisdiction,  will5  I  perceive,  by  no  means 
be  admitted  by  the  lorfr  De  Witt,  and  the  reason  he 
seems  to  give  is  this,  because  such  a  qualification,  if  in- 
tended with  reference  to  the  said  inhabitants,  must  sup- 
pose a  power  to  be  placed  in  some  or  other  to  be  an  ar- 
bitrator) and  to  judge  whether  that  modus,  or  manner 
of  possession,  be  all  along  kept  with  the  said  inhabitants 
or  not ;  for  otherwise^  such  a  qualification  or  restriction 
can  be  to  no  purpose,  nor  of  any  efficacy  or  materialr 
nesse  at  alL  But  this  interpretation  of  it  he  utterly  de- 


760  OPINIONS    OP    EMINENT    LAWYERS. 

nies,  in  regard  it  would  then  unavoidably  interfere  with 
the  concession  of  that  plenary  sovereignty  and  jurisdic1* 
tion  which  is  granted  of  the  said  place  in  the  very  same 
third  article  of  the  general  peace,  and  must  imply  also 
with  it  a  contradiction  in  the  very  words  and  grammar 
of  the  said  article ;  and  that  in  regard  a  sovereign  right 
cannot  possibly  be  transferred,  without  the  privation 
and  exclusion  of  all  right  after  any  manner  whatever  in 
any  other  person  beside  ;  and  because  a  right  of  judg- 
ment, arbitration,  or  mediation,  if  reserved  to  or  in  any 
other,  doth  and  must  destroy,  of  necessity,  such  a  right 
as  is  plenary  and  sovereign,  so  that  these  two  can  be  no 
way  consistent  together;  and  therefore  either  the  latter 
clause  of  the  said  3rd  article,  "  eum  prorsus  in  modum, 
<&c."  cannot  be  meant,  as  if  it  could  be  intended  there- 
by to  put  a  modification  or  restriction  upon  right  of  ab- 
solute sovereignty  before  granted,  or  if  it  shall  be  so  in- 
terpreted, then  must  the  words  before  mentioned,  "cum 
plenario  jure  summi  imperil^  prvprietatis,  &  possession- 
is,  otnnes  ejusmodi  terras,  loca,  &  colonias,  teneat  &  pos- 
sideat  in  posterum"  that  is,  " that  either  party  shall 
keep,  and  possess,  for  the  future,  all  such  lands,  places, 
and  colonies,  how  many  soever,  with  plenary  right 
of  sovereignty,  property,  and  possession,"  be  wholly  re- 
scinded, seeing  these  two  clauses,  being  directly  oppo- 
site, can  no  way  stand  one  with  another.  But  that  by 
the  first  words,  "  cum  plenario  jure"  an  absolute  and 
unlimited  cession  of  sovereignty  was  intended,  the  lord 
De  Witt  doth  appeal  to  the  circumstances  of  the  treaty, 
and  principally  to  a  paper  given  in  by  the  lords  pleni- 
potentiaries of  the  English  themselves,  July  7,  1667,  in 
which  the  former  clause,  "cum  plenario  jure ''  is  provid- 
ed fully  for,  and  the  latter  clause,  "  eum  prorsus  in  mo- 


OF    THE    LAW    OF    NATIONS. 


dum"  is  wholly  left  out, and  so  the  scruple  is  removed  : 
the  truth  and  examination  of  which  matter  of  fact,  I 
must  humbly  leave  to  your  lordship  ;  for  upon  this 
ground,  it  is  plain  that  the  lord  De  Witt  will  have  the 
latter  clause^  ll  eum  prorsus  in  modum"  to  be  added  on- 
ly to  limit  and  restrain  the  possession,  as  intending  that 
those  places  strictly,  which  were  actually  possessed  on 
either  side  on  May  £},  should,  as  they  were  possessed 
without  claim  to  any  otherSj  which  were  not  so  actually 
possessed  by  them  at  that  time,  be  mutually  conceded 
to  each  other,  in  the  point  of  plenary  right  and  sove^ 
reignty  'to  them  ;  and  indeed  my  lord,  this  consequence 
is  so  rational,  that  if  the  matter  of  fact  be  granted,  and 
the  plenary  right  of  the  sovereignty  to  Surinam  be  yield- 
ed to  be  conceded  in  the  former  part  of  the  words  of 
that  article,  there  fs  no  avoiding  the  latter  possibly :  see- 
ing, as  it  cannot  be  denied,  that  the  latter  words,  "eum 
prorsus  in  modum"  do  bear  the  force  of  a  limitation,  it 
must  inevitably  follow,  then,  that  if  this  limitation  be 
not  to  be  applied  to  the  sovereignty,  it  must  of  necessi- 
ty be  applied  to  the  possession  and  detention,  because, 
besides  these  two  things  there  is  no'thing  else  before 
mentioned ;  and  I  must  needs  acknowledge  also,  my 
lord*  that  my  lord  De  Witt's  plea,  for  the  not  applying 
the  said  limitation  to  the  sovereignty,  but  rather  to  the 
possession  and  detention,  is,  beside  the  said  fact,  so  much 
the  more  strong,  firmer)  and  more  valid,  by  how  much 
no  mixed  sovereignty  is  usually  at  any  time  transferred, 
nor  can  well  be  done ;  but  it  would  in  its  own  nature  in- 
troduce a  manifest  confusion,  and  create  endless  disputes 
about  the  lawfulness  of  the  said  dominion :  and  should 
it  be  granted,  it  would  equally  be  as  inconvenient  for 
his  majesty  in  reference  to  the  country  of  the  Manhat- 
97 


762  OPINIONS    OP    EMINENT    LAWYERS. 

• 

ons,  as  it  is  for  the  Dutch  in  reference  to  Surinam ;  so 
that  upon  the  whole,  my  lord,  I  see  no  cause  but  to  ac- 
knowledge the  great  judgment,  maturity,  advisedness, 
and  civilities  of  my  lord  De  Witt's  answer.  This  there- 
fore, being  the  only  material  thing  that  seems  to  be  un- 
taken  notice  of  in  it,  which  is  the  enumerating  what 
places  they  are  of  which  on  May  ^~the  Dutch  were 
strictly  possessed  ;  for  in  regard  it  is  wholly  agreed  by 
my  lord  De  Witt  himself,  and  so  agreed  as  it  never  can 
by  his  own  answer  be  avoided,  that  his  possessing  Sur- 
inam can  give  him  a  right  to  no  other  place  beside  Sur- 
inam, that  he  did  not  actually  possess  at  that  time  :  so, 
inasmuch  as  he  cannot  pretend  to  be  possessed  of  every 
river  in  that  coast,  then  he  cannot  pretend  to  have  the 
right  of  sovereignty  over  all  the  whole  coast,  or  the 
right  of  sovereignty  in  or  over  any  place  more  of  the 
said  coast,  than  of  those  places  strictly  and  limitedly,  of 
which  he  was  liquidly  and  certainly  possessed.  Which 
being  granted,  your  lord  President  will  see,  that  to  as- 
sert the  " plenarium  jus"  or  sovereign  right,  what  it  is, 
which  the  Dutch  now  have  upon  the  coast  of  Guiana,  by 
virtue  of  the  articles  of  peace,  it  is  absolutely  necessary 
for  them  that  they  should  prove  what  they  did  so  strict- 
ly possess,  and  should  enumerate  the  places,  rivers,  coun- 
tries, or  colonies,  distinctly  and  exclusively,  which  they 
had  the  possession  of,  and  which  as  we  have  said  is  not 
done,  but  is  omitted  wholly,  in  that  otherwise  most  full 
and  accurate  answer  of  my  lord  De  Witt :  for  as  we 
must  grant  they  have  not  only  a  right  to  the  river  of 
Surinam,  but  to  so  many  other  rivers  also  upon  that 
coast,  as  it  doth  appear  were  not  only  seized,  but  actual- 
ly held  and  possessed  by  them  on  May  ^,  so  must  we 
equally  and  strictly  insist  upon  it,  that  beside  what  riv- 


OP    THE    LAW    OP    NATIONS.  763 

ers  they  so  possessed,  and  can  prove  that  they  were 
then  really,  actually,  arid  strictly  held  by  them,  they 
cannot  challenge,  nor  ought  we  to  grant  they  have  any 
right  of  sovereignty  in  them;  and  consequertly  that  as 
they  have  no  right,  so  no  pretension  of  any  right,  to 
whatever  river  or  place  was  certainly  and  actually  held 
by  us,  upon  any  part  of  that  coast,  be  it  where  it  will,  so 
that,  to  apply  the  whole,  as  the  Dutch  there  being  pos- 
sessed of  the  river,  Surinam  on  May  ^,  could  give  them 
no  right  of  sovereignty  to,  or  over,  Marawyn,  Mapawyn, 
or  Comowyn,  which  are  other  rivers  upon  .the  same  coast 
of  Guiana,  had  not  these  rivers  been  then  also  actually 
possessed  by  them,  so  their  right  of  sovereignty  over 
those  rivers  coming  strictly  by  their  actual  unlimited 
possessing  of  them,  can  give  them  possibly  no  right  to 
the  river  of  Saramica,  which  they  were  not  at  that  time 
actually  possessed  of  but  was  actually  held  by  us ;  seeing 
if  their  possession  of  the  rivers  before  mentioned  can 
give  them  a  right  to  Saramica,  which  they  cannot  pre- 
tend to  be  possessed  of,  it  may  as  well  equally  give  them 
a  right  to  a  second  river,  and  so  to  a  third,  and  so  to  all 
the  rivers  upon  the  coast,  which  is  absurd  even  by  my 
lord  De  Witt's  own  reasoning.  Wherefore,  I  conclude, 
my  lord,  that  Saramica  being  held  by  us  on  May  £  is 
ours  in  the  sovereignty  of  it,  by  unquestionable  right, 
and  that,  beside  the  rivers  of  Surinam,  Mapawyn,  Ma- 
rowyn,  and  Comowyn,  we  have  a  right,  equally  with  the 
Dutch,  to  any  other  rivers  or  places  upon  that  coast, 
which  was  the  thing  principally  aimed  at  in  my  last  to 
express  the  duty  of,  my  lord, 

Your  lordship's  servant. 

W.  TEMPLE. 


POSTSCRIPT, 


The  Discussion,  by  the  Barrister,  before  inserted,  was 
written  by  JOHN  REEVES,  Esq.,  the  Author  of  the  His- 
tory of  the  English  Law,  and  of  other  Works,  legal  and 
political. 


I  N  D  E  X. 


A. 

Absentees  from  general  assemblies  may  be  proceeded  against  iii  the 
courts  of  justice,  and  punished  by  fine  and  imprisonment,  296. 

Acts  of  parliament  extending  to  the  king's  dominions,  are  in  force  in 
the  plantations,  notwithstanding  some  of  the  provisions  may  be  appli- 
cable only  to  Great  Britain,  212. 

and  an  act,  declaring  such  acts  perpetual,  is  equally  ex- 
tensive, ib. 

but  it  seems  that  a  clause   introducing  a  new  crime,  and 


made  to  render  more  effectual  an  act  not  extending  to  the   colonies, 
will  not,  unless  the  colonies  be  referred  to,  extend  to  them,  ib. 
whether   an  act,  which  was   to  continue  so   long  as  Mr. 


Worsley  continued  governor  of  Barbadoes,  ceased,  if  a  new   commis- 
sion was  granted  to  him  within  six  months  after  the  king's  death,  238, 
244. 
if  the  new  commission  be  granted  after  the  expiration  of 


the  six  months,  it  seems  that  the  act  is  determined,  238. 
where  land  is  given  to  the  king  by  act  of  parliament,  or 


where  a  conveyance  by  a  statute  is  made  good   against  a  particular 
person,  all  other  men's  rights  are  saved,  without  any  proviso,  356. 
are  perpetual,  unless  there  are  words  in  them  to  determine 


their  duration,  429. 

Administration,  right  of  granting,  belongs  to  the  archbishop  of  Canter- 
bury, where  a  man  dies  intestate  in  the  plantations,  having  personal 
estate  in  England,  63. 

if  granted  in  the  plantations,  that  administrator  will  be 


766  INDEX. 

accountable  to  the  administrator  in  England,  b.ut  will  be  allowed  the 
payment  of  just  debts,  if  paid  in  the  order  the  law  allows,  ib. 
letters  of,  under  the  seal  of  the  prerogative  court  of  Can- 


terbury, when  received  at  the  plantations  are  to  be  allowed  there,  and 
the  authority  of  the  administration,  granted  in  the  plantations,  ceases 
from  that  time,  65. 

Administrator  in  the  plantations  (See  titles  Administration  and  In- 
testate.) 

will  not  be  allowed  the  payment  of  any  debts,  without 

specialty  in  the  colonies,  if  there  be  debts  of  a  superior  nature  un- 
satisfied in  England,  63. 

if  there  be   debts   of  equal   nature  in  England  and  the 


plantations,  he  may  discharge  which  he  pleases,   before  he  be  sued  for 

any  other  of  the  like  nature,  ib. 
Admiralty,  vessel  taken  by  a  non-commissioned  ship  is  a  perquisite  of, 

533. 

Admiralty  courts  in  England  and  the  colonies. 
their  jurisdiction  respecting  matters  relating  to   the  colonies, 

499,  502,  503. 

can  only,  as  such,  try  pirates  by  the  civil  law,  511,  512. 

their  power  is  the  same,  but  an  appeal  lies,  from  the  courts  in 


the  colonies,  to  the  court  of  admiralty  in  England,  516,  518,  531,  532. 
in  acts  in  which  the  terms  "  essoign,"  "  protection,"  or  "  wager 

of  law"  are  used,  with  reference  to  the  king's   court,  the  admiralty  is 

excluded,  and  it  is  not  a  court  of  record,  519 
may  fine  and  imprison  for  contempt  in  court,  but  not  for  any 

thing  done  out  of  court,  520. 
Advowsons  in  plantatipns  subject  to  the  laws  of  England,  where  there 

is  no  express  laws  of  the  plantation  concerning  the  same,  58,  60. 
in  case  of  avoidance,  the  ordinary  of  the  plantation,  according 

tothestat.   28    Hen.   VIII.  c.   11.  s.  5.  is  to   appoint  a  minister   to 

officiate  till  presentation  or  lapse,  58,  61. 
and  he  may  collate  to  a  church  by  lapse,  60. 


Algiers,  observations  on  report  relating  to  the  trade  of  Minorca  with, 

624. 

Aliens,  how  they  become  subjects,  660  to  666. 
Alien  enemies  preserve  their   rights,  by  the  law  of  nations,  to  property 

in  the  public   funds  of  the  hostile  government,  notwithstanding  the 

war,  638. 


INDEX.  767 

American  acts  of  the  10th  of  February   1715,  1716,  and  the    17th  of 

July  1740,  expired  with  the  war,  232. 
goods  taken  under  the  American   act  of  the  Gth  Ann,  and 

carried  to   ports  in  America,   chargeable  as  prize   goods,  with   such 

duties  as  would  be  left  in  England  if  the   same   had  been  exported 

after  an  importation,  586. 

American  citizens,  whether  British  subjects  or  aliens,  648. 
Ancient  rights  restored  on  a  re-conquest  of  lands,  131. 
Ajrpeal  in  legal  proceedings  lies  to  the  king  in  council,  230. 
lies  from  the  court  of  exchequer  to  the  governor  and  council  of 

the  plantation,   489. 
and  from  the   governor  and  council,  to  the  king  in  council,  496, 


532. 
Assemblies,  general,  in  the   colonies,  king's  right  to  call   and   continue, 

200,  231. 
under  adjournment  or  prorogation,  may  be  prorogued 

without  a  meeting,  239. 
whether  entitled  to  the  privileges  of  English  parliaments, 


ib.  and  see  265,  292. 
the  king's  prerogative  in  relation  to  them  is  as  extensive 


as  in  England,  ib. 
are   not   dissolved  by  the  publication  of  a   conmission, 


determining  the  commission  of  the  governor  by  whom  the  king's  writs 

were  tested,  249. 

but  are  dissolved  on  the  death  of  the  king,  252,  322. 

contra,  299,  to  320. 

are  regulated  by  their  charters,  usages,  and.  the  common 


law  of  England,  and  are  not  entitled  to   the  same  privileges  as  the 
house  of  commons  in  England,  264,  293. 
the  right  of  sending  representatives  to,  may  be  altered, 


270,  273,  275. 
neglecting  to  meet  at  the  time  to  which  they  were   ad- 


journed, are  not  dissolved,  271. 
their   cots  are  good  till  repealed,  and  are  void  only  from 


notification  of  the  repeal,  292. 
conviction   of  person  in  England  is  no  legal  objection  to 


his  sitting  in,  295. 
absentees  from,  may  be  proceeded  against  in  the  courts 


of  justice,  and  punished  by  fine  and  imprisonment,  ib. 


768  INDEX. 

Assemblies,  general,  have  no  power  to  impose  a  tax  upon  convicts  from 

England,  336. 
acts  of,  of  the  same  effect  in  the  colonies,  as  acts  of  parli- 

ment  in  England,  351. 
cannot  alter  the  common  law  of  England,  or  the  common 


securities  of  the   kingdom,   or  affect  the  king's  prerogative,  or   take 
away  any  authority  vested  in  the   governor  by   virtue  of  the  king's 
commission,  376. 
where  patentees  of  lands  have  not  planted  them,  assemblies 


have  passed  acts  for  the  resumption  of  those  lands,  387. 
acts,  unwarranted  by  the  charter,  void,  402. 


act  ought  not  to  be  repealed  which  would  injure  the 

rights  of  purchasers  under  it,  after  a  long  acquiescence.  460. 

Assent,  royal,  precedent,  as  effectual  as  subsequent  to,  a  session,  309. 

Attorney  general,  informations  by,  observations  on,  and  act  respecting, 
493,  496. 

B. 

Bahamas,  division  of  an  intestate  mulatto's  estate  in  the,  150. 

treasure  trove,  the  property  of  the  crown,  ib. 

- charter  of  these   islands   does   not  entitle  the  proprietors  to  an 

admiralty  jurisdiction,  507. 

Barbadocs,  regulation  of  proceedings  in  the  court  of  common  pleas  in, 
196. 

— whether  the  commission  of  governor  ceased  by  the  king's  death 

234  ;  and  see  title  Act. 

act  for  laying  a  duty  on  wines  and  strong  liquors   imported  into 

the  island,  objectionable,  360. 

private   acts   for   docking   entails    objectionable   for    particular 

grounds  in  each  act,  367. 

— act  of   1722,  for  supporting  the  honor  and  dignity  of  the  crown, 

objectionable,  3G9. 

act  relating  to  the  payment  of  bank  bills  objectionable,  as  vari- 
ant from  the  instructions  of  the  crown,  and  being  insufficient  and  re- 
pugnant to  the  laws  of  the  land,  the  rights  of  the  subject,  and  the 
prerogative  of  the  crown,  373  to  383. 

act  prohibiting  the   carrying   away  white  servants,  without  the 

consent  of  the  owners,  under  a  penalty,  objectionable,  384. 

act  obliging  officers  to  hand  up  tables  of  fees  in  their  offices  and 


courts  proper,  but  punishm  ent,  without  trial,  for  the  omission,  unj  ust,  39 1 . 


INDEX.  769 

Barbadoes,  act  to  empower  licentiate  lawyers   to  practice  as   barristers 

objectionable,  392. 
decree  of  the  court   of  chancery,   under   which  lands  had  been 

seized  for  non-payment  of  a  charity  rent,  which   was  not  charged   on 

the  grantor's  real  estate,  controvertible,  467. 
act  to  bar  entail  in  lands  there  proper ;  as  by  the  laws  of  that 


plantation,  a  deed  registered  there  will  be  as  effectual  a  bar  as  an  act 

of  assembly,  485,  486,  487. 

approbation  of  acts  passed  in  1701,  502. 

observations  on  acts  in  1701,  507. 


Bermuda^  islands,  report  on  the  acts  of  assemblies  in  1690,  1,  4,  8,  and 

1701,  403  to  422. 
act  affecting  the  importation  of  British  goods,  objectionable, 

422. 
observations  on  judicial  proceedings  there,  4G1  to  467. 


Bonds  from  the  governor  of  a   proprietary   government,  for  observing 
the  acts  of  trade,  should  be  to  the  king,  his  heirs,  and  successors,  261. 

c. 

Canada,    Upper,  crimes  committed  in,  triable  in  the  courts   of  justice 

there,  215. 

Canary  Islands  not  esteemed  part  of  Europe,  and  wines  may  be  car- 
ried directly  from  thence  to  the  plantations,  572. 
Canterbury,  archhisJiop  of,  his  prerogative  power  concerning  wills  and 

administrations,  64.     See  title  Administration. 
Carolina,  constitutions,  S76,  et  seg. 

observations  against  duty  of  1 0  per  cent,  on  British  goods,  586. 

,  South,  funds  arising  from  taxes  in,  disposable  only  by  the  same 

authority  which  raised  them,  296. 
therefore  a  grant  by  the    assembly  alone,  of  part  of  the 


funds  for  supporting   the  rights    and  liberties   of  Great   Britain  and 
America,  and  the  consequent  pay  in  en  t,.  illegal,  296. 
acts  for  regulating   courts  of  justice  in,  illegal,  as  passed 


by  an  usurped  authority,  342. 
and  the  act  relating  to  the   biennial  and   other   assemblies, 


and  regulating  elections  of  members  considered  derogatory  of  the  au- 
thority of  the  crown,  344. 
act  for  the  government   of  Charlestown  objectionable,  as 

98 


770  INDEX. 

establishing  an  oligarchy,  and  being  against   the  inclinations   of  the 

majority  of  the  inhabitants,  395. 

act  passed  in  1746,  relative  to  coins,  objectionable,  425. 

observations  on  the   act  passed  in    1747,  empowering  two 


justices  and  three  freeholders,  or  a  majority  of  them,  to  determine  in 
actions  of  debt,  where  the  matter  in  dispute  did  not  exceed  20/.  476. 
observations  on  their  acts  for  the  regulation  of  the  Indi- 
an trade,  592. 
,  North,  acts  not  ratified  by  the  palatine  or  his  deputy,  and 


three  of  the  lords  proprietors  and  their  deputies,  in  the  same    session 
of  parliament,  not  binding  on  the  crown  or  people,  359. 
acts  concerning  attornies from  foreign  parts,  and  forgiving 


priority  to  country  debts,  void,  so  far  as  it  postpones  the  execution  or 
judgment  for  foreign  debts,  as  being  unwarranted  by  the  charter. 
402. 

Ceded  countries,  inhabitants  of,  being  French  and  Spaniards,  not  to  be 
considered  as  aliens  after  the  peace  of  1763,  646. 

Cession,  effect  of,  with  regard  to  the  sovereignty  of  the  ceded  place, 
485,  to  the  end. 

Chancery,  by  the  practice  of,  defendant  after  process  of  contempt  has 
extended  to  a  sequestration,  appearing  and  paying  costs  of  the  con- 
tempt may  set  aside  the  sequestration,  479. 

Chancery  may  issue  writs  prohibiting  subjects  from  going  abroad,  548 

Circuit  courts  can  be  established  only  by  the  legislature  of  the  colony, 
or  the  parliament  of  Great  Britain,  459. 

Coin.     (See  title  Counterfeiting.') 

foreign,  value  of,  established  by  proclamation,  and  the  tender  there- 
of, according  to  that  value,  is  a  legal  tender;  and  proprietary  govern- 
ments, making  laws  to  give  such  coins  a  currency  beyond  the  proclama- 
tion, are  guilty  of  a  misdemeanor,  610. 

Colonies.     (See  the  several  titles  in  the  index.) 

Commission,  governors,  determination  of,  cannot  operate  to  dissolve  a 
general  assembly,  249  to  261 . 

ceases  by  the  death  of  the  king,  252. 

— cannot  empower  the  passing  an  act  repugnant  to 

the  laws  of  England,  375. 

its  authority  cannot  be  affected  by  an  act  of  as- 


sembly, 376. 
Commissions  of  oyer  and  terminer,  fcr  trial  of  offences,  cannot  be 


INDEX.  771 

granted  in  the  colonies  under  the  stat.  33  Henry  VIII.  c.  23.  470. 
but  they  may  issue  in  England  for 


the  trial  of  offences  committed  in  colonies,  in  which  there  are  no  set- 
tled courts  of  justice,  171,  526. 

and  under  the  stat.    11   and   12 

William  III.  c.  .".5 IS,  525. 

Common  law  of  England,  and  statutes  in  affirmance  of  it,  passed  ante- 
cedent to  the  settling  of  a  colony,  are  in  force  there,  unless  there  is 
any  act  to  the  contrary,  292,  5J 1. 

but  statutes  made  since  the  settling  are  not 

in  force^  unless  the  colonies  be  particularly  named,  228,  51 1. 
cannot  be  altered  by  acts  of  assemblies, 


3  70. 
Connecticut,  construction  of  the  charter  of,  as  to  the  power  of  making 

laws,  341. 
Conquered  parts,  king  may,  under  the  great  seal,  tax  and  make  laws  to 

bind,   158,  231- 
Conquest  by  the  enemy  suspends  private  property,  and  on  a  re-conquest 

the  ancieut  rights  revive,  and  are  restored  jure  postliminii,  130. 

binds  inhabitants  to  allegiance  by  the  law  of  nations,  642. 

Convicts,  tax  imposed  by  the  assembly  of  a  colony  upon,  illegal,  336. 
Conviction  in  England  no  legal  objection  to  a  person's   sitting  as  a  re- 
presentative in  a  general  assembly,  294. 
Corporation  cannot  purchase  lands  which,  shall  enure  to  themselves  un 

less  by  license,  134. 
establishment  of,  for  insuring  skips,  observations  on  544  to 

609. 
Conspiracy  to  entice  subjects  into  a  foreign  service  is  a  misdemeanor, 

and  punishable  by  fine  and  imprisonment,  556. 
Counterfeiting  coin  is  only  a  misdemeanor  in  the  colonies,  unless  their 

charters  make  it  a  great  offence,  209. 
Crown.     See  title  King. 
Customs,  officers  of  should  seize  prohibited  goods,  and  goods  for  which 

the  duties  have  not  been  paid,  574. 
cannot  be  concerned  in  trade  and  shipping,  598. 

D. 

Denizen  may  be  master  of  a  ship  trading  to  the  plantations,  644. 


772  IN-DEX. 


East  India  Company,  laws  against  British  subjects  engaging  in  foreign 

557. 
•  ---  license  given  them  to  trade,  with  a  prohibition  to 

others,  good  in  law,  582. 

Ecclesiastical  authority  abroad,  the  Icing's,  4  1  . 
Escheats  on  the  death  of  the  tenant,  without  heirs,  cannot  be  granted 

before  they  happen,  otherwise  than   by  grant  or  alienation  of  the 

seignory,  142. 
--  ,  on  attainder  of  treason,  belong  to  the  crown,  as  a  prerogative 

royal.  —  Queer  e,  if  grantable  before  they  happen  ?  id.  • 

European  goods,  landing  of  at  Venice,  and  carrying  them  from  thence 

to  Guinea  subjects  ship  and  goods  to  forfeiture,  under  the  stat.  15- 

Car.  It.  267. 
Evidence  of  a  slave  against  one  who  is  or  has  been  a  slave  is  good  proof, 

and  an  act  was.  passed  in  Jamaica  to  prevent  such  evidence  against  a 

free  negro,  498. 
Exchequer,  court  of,  king  by  his  prerogative  may  erect  in  the  planta- 

tions, with  the  same  powers  as  the  court  of  Exchequer  in  England, 

567. 
---  decree  of,  may  be  appealed  from,  to  the  governor 

and  council  of  the  plantation,  489. 

F. 

Fees,  acts  of  Barbadoes,  obliging  officers  to  hang  up,  in  their  offices  and 

courts,  tables  of,  proper,  but  punishment,  without  trial,  for  the  omis- 

sion, unjust,  390. 

Felo  de  se,  grant  of  felons'  goods  does  not  extend  to,  170. 
Felons'1  goods,  what  passes  by  grant  of.  and  what  not,  170. 
Fines  and  recoveries,  in  England,  of  lands  in  plantations,  cannot  bar 

the  entail  of  such  lands,  unless  the  laws  of  the  plantation  have  provid- 

ed they  shall  have  that  effect,  488. 
Fish,  royal,  maybe  claimed  by  prescription,  150. 
Fishing  admiral  in  Newfoundland,  their  authority  under  10  and  1  1  Wil- 

liam IIP,  539. 

Fishery,  observations  on  the  charter  establishing,  533. 
Forfeiture,  if  a  province  has  incurred,  no  advantage  can  be  taken  there- 

of but  by  sacire  facias,  to  repeal  the  charter,  or  by  inquisition  finding 

such  forfeiture,  130. 


INDEX.  773 

Forfeiture,  but  it  seems  the  king  may  appoint  another  governor  without 

inquisition,  and  his  authority  will  be  legal,  66. 

what  passes  by  the  word  forfeiture  in  a  grant,  170. 

effect  of  pardon,  with  reference  to  forfeitures,  171. 

distribution  of,  under  the  acts  of  trade,  577. 

Freeholders  disobeying  the  precept  of  judges,  punishable  in  a  summary 

way  by  rule  of  court,  by  fine  and  imprisonment,  474. 

G. 

Georgia,  surrender  of  the  charter  for  establishing  the  colony,  148;  and 
see  title  Surrender. 

observation  on  act  of,  respecting  trade  with  Indians,  591. 

Gibraltar,  establishment  of  civil  jurisdiction  in,  183- 

Governois  of  plantations  empowered  to  appoint  naval  officers,  to  re- 
ceive the  particulars  of  ships  arriving  at  the  plantation,  183 

their  commissions  continue  for  six  months  af- 
ter the  king's  death,  234,  300,  310. 

cannot  vote  as  councillors  in  the  passing  of 


bills,  when  the  council  sits  in  a  legislative  capacity,  238. 

empowered  to  exercise  the  king's  prerogative, 


239,  300. 
by  virtue  of  their  commission  may  dispossess 


the  acting  government,  and  assume  the  government,  until  the  arrival 
of  another  governor,  243. 
should  use  the  great  seal  of  the  colony,  in 


granting  offices  by  virtue  of  their  commissions ;  but  a  grant  under  the 
governor's  seal  may  be  valid,  if  usage  dispense  with  the  use  of  the 
great  seal,  246,  247. 

may  prorogue  assemblies,  247. 

may  meet,  adjourn,  and  legally  act  with   as- 


semblies chosen  by  virtue  of  the  king's  writs,  tested  by  a  former  gov- 
ernor, 250  to  261- 

their  commissions  cease  by  the  death  of  the 

king,  252. 

by  their  death  or  removal,  their  commission 


does  not  determine ;  but  the   lieutenant-governor  or  president  of  the 
council,  may  exercise  the  powers  of  it;  254,  302,  326. 
determination  of  their  patent  does  not  deter- 


mine the  office  of  any  person  holding  also  by  patent,  nor  any  office 
held  by  the  seal  of  the  province,  ib. 


774  INDEX. 

Governors  of  plantations  cannot  legally  issue  writs  for  choosing  new  rep- 
resentatives, without  dissolving  the  assembly,  271. 

stand  in  the  same  relation  to  the  other 

branches  of  the  legislatiure,  as  the  king  to  the  other  branches  of  the 
parliament,  302. 

should  transmit,  in  due  time,  laws  for  the 


king's  approbation,  318. 
: cannot  (by  virtue  of  their  commissions)  em- 


power the  passing'an  act  contrary  to  law,  375. 
if  they  have  authority  by  their  commissions 


and  instructions  to  erect  courts,  they  may  grant  a  commission  of  oyer 
and  terminer"for  trial  of  offences,  471. 
•  clause,  empowering  them  as  chancellors,  to 


issue  commissions  for  the  care  and  custody  of  the  persons  and  estates 
of  idiots  and  lunatics,  48 1 . 
by  virtue  of  a  general  power  of  erecting  courts 


of  justice,  they  may  appoint  a  chief  baron  of  a  court  of  exchequer, 
484. 

Grants  King's,   100. 

of  the  office  of  auditor-general  of  the  revenue  of  a  colo- 
ny, good  in  law,  and  may  be  exercised  by  a  sufficient  deputy,  160. 

of  felons'  goods,  what  passes  by,  169. 

• what  passes  by  the  word  "forfeiture,"  170. 

the  circumstance  of  their  having  been  warrants  for  mak- 


ing grants,  many  years  before  the  grants  issued,  is  not  sufficient  to 
support  grants,  otherwise  irregular  and  void,  174. 

—  where  grantees  possess   a  greater  quantity  than  they 


should  hold  by  the  words  of  the  grant,  they  are  liable  to  a  resurvey, 
and  the  remedy  is  by  information,  in  the  name  of  the  attorney-general 
of  the  province,  in  a  court  of  equity  there,  to  have  the  real  quantity 
set  out,  and  the  excess  pared  off  for  the  crown,  174. 

where  grants  are  voidable,  the  remedy  is  by  an  inform- 


ation of  intrusion,  in  the  proper  courts  of  the  province;  and  in  case  of 
error  there,  by  appeal  to  the  king  in  council,  175. 
of  two  baronies  in  Carolina,  "-quarum  singulce  contin- 


eat  12.000  acras  terra"  void  for  uncertainty,  176. 
by  the  crown,  of  the  office  of  registrar  of  a  province, 


valid,  178. 
. of  office,  should  be  under  the  great  seal  of  the  colony,  247. 


INDEX.  775 

Greenland  fishery,  act  for  encouraging,  does  not  extend  to  Newfound, 
land,  535. 

difference  between  this  and  the  Muscovy  company.  546. 

Guadaloupe,  considered  as  a  plantation  belonging  to  the  crown  by  con- 
quest, 640  to  643. 

Guernsey  and  Jersey,  no  writ  of  extent  out  of  the  court  of  exchequer, 
nor  any  process  from  the  court  of  king's  bench,  can  be  executed  in,  89. 

remedy  for  crown  debts,  is  by  proceeding  in  the 

courts  there,  ib. 

are  governed  by  laws  of  their  own,  subject  to  the 


king's  orders  in  council,  ib. 

H. 

Hemp,  of  the  growth  of  Russia,  may  be  imported  in  English  bottoms 
from  the  Netherlands,  569. 

I.   J. 

Jamacia,  original  constitution,  and  commissions  of  the  different  govern- 
ors of,  on  its  conquest  from  the  crown  of  Spain,  and  acts  passed  by 
the  governor  and  council,  and  by  the  assembly  of  freeholders,  and 
their  validity  and  continuance,  217,  et  seg. 

whether  to  be  considered  as  a  colony  of  English  subjects,  or 


as  a  conquered  country,  231. 

whether  the  governor  of,  has  a  right  to  issue  writs  for  electing 

members  on  a  vacancy,  without  waiting  for  a  message  from  the  assem- 
bly, 293,  352. 

the  "  act  to  provide  an  additional  subsistence  for  her  majes- 


ty's officers  and  soldiers,  and  for  other  uses,"  objectionable,  as  in- 
trenching on  the  queen's  prerogative,  350. 
the  "  act  for  granting  a  revenue  to  his  majesty,  his  heirs,  and 


successors;  for  the  support  of  the  governor  of  this  island,  and  for  revis- 
ing and  perpetuating  the  acts  and  laws  thereof,"  objectionable,  from 
its  n  on -conformity  to  the  instructions,  353. 

act  of  foreclosure,  passed  by  the  assembly,  not  objected  to,  as 

doing  no  more  than  a  court  of  equity  would  do,  but  the  interference  of 
the  legislature,  in  private  matters,  generally  objectionable,  356. 

similar  act,  approved  under  particular  circumstances.  385. 

revenue  acts,  observations  on,  397,  428,  452. 

objections  to  an  act,  making  all  their  laws  and  acts  perpetual,  399. 


776  INDEX. 

Jamaica,  "  act  for  regulating  fees,"  objectionable  in  part,  from  its  un- 
reasonableness, 400. 

• observations  on,  and  objections  to  the  acts  of  assembly  passed 

in  1757  respecting  the  judges  of  the  supreme  court  of  legislature,  the 
election  of  members  of  the  assembly,  the  quieting,  possessions,  and  es- 
tablishing reputed  boundaries,  the  appointing  commissioners  of  nisi 
prius,  and  enlarging  the  jurisdiction  of  justices  of  peace  in  matters  of 
debt,  and  the  establishing  the  credit  of  the  island,  430. 

objections  to  a  clause  in  an  act  of  assembly,  by  which,  vessels 


having  blacks  on  board,  amounting  in  number  to  above  one-fourth  of 
the  hands,  were  to  be  forfeited,  and  estates  of  non-resident,  were  taxed 
higher  than  those  of  resident  prorietors,  454. 
objection  to  the  acts  relative  to  the  removal  of  the  seat  of  gov- 


ernment to  Kingston,  and  an  act  to  enlarge  the  jurisdiction  of  the  in- 
ferior court  of  common  pleas,  456. 
king  may  open  ports  of  entry  and  clearance  in  different  parts? 

and  direct  officers  to  attend  for  the  business  of  such  ports,  458. 
circuit  courts,  could  not  be  established  but  by  the  act  of  the 


legislature  of  the  island,  or  the  parliament  of  Great  Britain,  459. 
commissioners  of  nisi  prius  not  empowered,  under  the  act 


passed  in  1751,  to  hold  a  court  of  nisi  prius  without  a  commission, 
from  his  majesty,  472. 

and  a  commissioner  so  holding  a  court,  is  liablo  to  be  prosecu- 
ted, by  information,  for  misdemeanor,  ib. 

Idiots  and  Lunatics,  form  of  clause,  giving  the  governors  of  plantations, 
as  chancellors,  power  to  issue  commissions  agreeably  to  the  usage 
and  practice  of  England,  481. 

the  chancellor,  under  the  king's  warrant,  has  only 

powers  of  administration  and  management,  and  all  questions  (except 
between  the  lunatic  and  his  committee)  must  be  decided  by  a  bill  or 
action,  483. 

Importation,  is  accounted  from  the  time  of  the  ships'  coming  within  the 
limits  of  the  port,  with  intent  to  land  its  cargo  there,  576* 

Indictment,  injury  to  trade  punishable  by,  557. 

Informations,  by  attornies  general,  act  respecting,  and  observations  on, 
494,  495. 

• lie  for  injuries  to  trade,  552. 

Insurance  of  ships,  proposed  charter  to  a  corporate  body  for,  observa- 
tions on,  599  to  609. 


INDEX.  777 

Intestate's,  personal  estate  in  England,  and  in  the  plantations,  liability 
and  application  of,  64. 

mulatto,  in  the  Bahamas,  dying  intestate,  withont  relations, 

one  moiety  of  his  estates  goes  to  the  crown,  the  other  to  his  wife, 
150. 

See  titles  Administration  and  Administrator. 

Judges,  empowered  to  issue  their  precept  to  freeholders,  where  a  justice 
of  the  peace  has  resigned,  and  freeholders  disobeying,  may  be  pun- 
ished in  a  summary  way,  by  rule  of  court,  with  fine  and  imprisonment, 
474. 

• commission  of,  not  revocable  without  misbehavior,  491. 

Jus  Postliminii,  after  a  war,  reverts  to  creditors,  relative  to  debts  con- 
tracted before  the  war,  033. 

Justices  of  peace  are  to  act  according  to  the  laws  of  England,  537,  538. 

and  offences  against  them  are  punishable  by  fine  and 

imprisonment,  537. 

— —  their  power  is  restrained  to  criminal  matters,  mention- 


ed in  their  commission,  538,  541. 

K. 

King,  his  ecclesiastical  authority  abroad,  41. 

his  prerogative  cannot  be  lessened  or  taken  away,  by  general  words, 

.  but  only  by  express  terms,  55,  135,  139. 

his  civil  authority  abroad,  65. 

where  a  governor  has  committed  a  forfeiture,  the  king  may,  though 

it  has  not  been  found  by  inquisition,  constitute  another  governor,  and 
his  authority  will  be  legal,  66. 

upon  an  extraordinary  exigency,  he  may  resume  the  government 

of  any  province,  or  colony,  and  constitute  a  civil  and  military  govern- 
or thereof,  67. 

but  such  governor  cannot  alter  any  of  the  rules  of  property,  or 


methods  of  proceeding  in  civil  causes,  id. 
—  he  may  receive  a  surrender  of  the  powers  wherewith  the  proprie- 


tor and  governor  of  a  province  is  invested  by  grant  from  the  crown, 
67,  69,  72. 

. his  authority  over  Guernsey  and  Jersey,  88. 

his  right  to  grant  ceded  lands,  105. 

his  right  to  a  moiety  of  an  intestate  mulatto's  estate,  and  to  treas- 
ure trove  in  the  Bahamas,  150. 

99 


778  INDEX. 

King,  no  prescription  against,  where  a  colony  lias  been  gained  within 
time  of  memory,  150. 

his  power  of  taxation,  158. 

may,  under  the  great  seal,  direct  duties  to  be  levied  for  goods  ex- 
ported from  conquered  parts,  159. 

may.  by  virtue  of  his  prerogative,  make  laws  that  will  bind  places 

obtained  by  conquest,  ib. 

may  take  off  unappropriated  duties,  160. 

his  grants,  1 60 ;  and  see  title  Grants. 

— — ,  his  power  to  resume  granted  lands,  where  the  conditions  of  the 
grant  have  not  been  fulfilled,  167. 

his  remedy,  where  grantees  hold  more  land  than  the  words  of  the 

grant  warrant,  and  where  the  grants  are  voidable,  174,  175. 

may,  by  virtue  of  his  prerogative,  establish  courts  of  equity  in  the 

plantations,  195. 

• and  courts  of  exchequer,  484. 

and  criminal  courts  by  commission  under  the  great  seal,  but  not 

otherwise,  542  to  544. 

should,  after  a  surrender  by  trustees,  of  a  charter  for  establishing 

a  colony,  issue  a  proclamation  under  the  great  seal,  in  order  to  au- 
thorize officers  to  continue  in  the  exercise  of  their  offices,  until  a  new 

government  is  established,  198. 

has  always  exercised  the  right  of  calling  and  continuing  assemblies 

in  the  colonies,  when,  and  as  long  as  it  was  necessary  for  the  public 
service,  200. 

whether  his  prerogative  under  the  stat.  2i  James  I.  c.  3,  concern- 
ing monopolies  to  grant  patents  to  first  inventors,  extends  to  the  plan- 
tations doubtful,  214. 

may,  under  the  great  seal,  give  powers  to  governors  for  doing  all 

acts  which  belong  to  him  by  his  prerogative,  230,  23  1. 

in  legal  proceedings,  an  appeal  lies  to  the  king  in  council,  230. 

• effect  of  his  death  upon  his  patents  and  commissions,  234. 

And  see  titles  Patents  and  Governors. 

his  prerogative,  in  relation  to  general  assemblies,  239,  259. 

his  prerogative  in  the  West  Indies  is  that  power,  which,  by  the 

common  law,  he  could  rightfully  exercise  in  England,  239. 

his  powers  of  summoning  and  proroguing  parliament,  240. 

by  his  death  his  commissions  cease,  aud  general  assemblies  are 

dissolved,  252,  253,  238. 


INDEX.  779 

King,  but  as  to  the  dissolution  of  assemblies,  see  conora,  302  to  320 

and  acts  done  under  commissions  after  his  death,  but  before  notice 

of  it,  are  good,  307. 

•  may,  by  instructions  to  his  governor,  alter  the  right  of  representa- 
tion, where  it  was  founded  on  instructions,  if  there  have  been  no  act 
of  assembly  approved  by  him  to  the  contrary,  269,  273,  275. 

as  a  province  increases,  he  may  erect  towns  and  counties,  and  give 

them  the  privilege  of  choosing  representatives,  292, 

his  name  in  acts  of  assembly  unnecessary,  310. 

his  writ  of  summons  is  necessary  for  the  convention  of  an  assem- 
bly, 327. 

taxes  should  be  granted  to  the  king,  his  heirs,  and  successors,  360. 

bonds  to  the  king,  have  the  effect  of  judgments,  362. 

his  prerogative  cannot  be  affected  by  any  act  of  assembly,  376. 

ought  not  (on  account  of  the  final  appeal)  to  interfere  in  a  case  be* 

tween  party  and  party,  480. 

—  cannot,  by  law,  direct  the  rehearing  of  a  cause,  490. 

may  allow  an  appeal  in  cases  of  any  value,  ib. 

may  grant  a  nolle  prosequi,  in  prosecutions  for  duties  charged  by 


an  act  of  assembly,  491. 

cannot  by  his  letters  patent  make  bonds  assignable,  or  make  things 

personal  descend  to  the  heir,  576. 

where  commissioners  are  appointed  for  the  trial  of  capital  offences, 

he  may  instruct  the  governor  to  carry  their  sentence  into  execution,  544. 

cannot  enforce  regulations  contrary  to  act  of  parliament,  546. 

may  prohibit  his  subjects  from  going  out  of  the  realm  without  li- 
cense, 547. 

and  may  command  their  return,  553,  554,  555. 


may,  on  special  occasions,  and  for  state  reasons,  restrain  particular 

subjects  from  an  uncontrolable  liberty  of  trading,  549  to  554. 

may  make  laws  in  plantations,  inhabited  by  his  subjects,  with  his 

permission,  582. 

•= cannot,  by  treaty,  make  his  subjects  liable  to  other  punishments, 

than  they  are  subject  to  by  the  laws  of  the  country.  623.  . 

L. 

Laws  of  nations,  6 1 2. 

Laws,  passed  after  the  sale  of  a  province,  but  before  notice  of  such  sale,, 
are  valid,  but  not  after  notice,  244,  312. 


780  INDEX. 

Legislature  should  not  interfere  in  matters  of  private  right  without  the 
greatest  necessity,  but  should  leave  them  to  the  legal  course  of  jus- 
tice, 357,  358. 

Licentiate  Laivyers,  objections  to,  392. 

Lieutenant-governor,  may  be  indicted,  and  tried  in  the  king's  bench, 
under  the  act  for  punishing  governors  of  plantations,  for  offences  com- 
mitted in  the  plantations,  260,  644. 

whether  subject  to  the  penalty  under  the  7th  and 

8th  Wil.  III.  for  regulating  abuses  in  the  plantation  trade,  qucere,  ib. 

Logwood,  carriage  of,  from  Honduras  to  Venice,  563. 

London,  bishop  of,  is  diocesan  of  the  colonies,  42. 

Lunatics :  see  title  Idiots. 

M. 

Man,  Isle  of,  custom  house  officers  cannot,  by  qirtue  of  their  office, 
make  seizures  in ;  but  under  the  7th  Geo.  I.  they  may,  as  common 
persons,  make  seizures  for  importations  there  contrary  to  that  act,  214. 

Manufactures,  what  machines  or  tools  used  in,  are  prohibited  from  ex- 
portation, 560. 

Marshal  is  the  proper  officer  in  the  colonies,  to  whom  warrants  should 
be  directed,  363. 

Martial  laiv,  proclamation  of,  does  not  suspend  the  execution  of  the  leg- 
islative authority,  nor  is  the  ordinary  course  of  law  and  justice  sus- 
pended any  further  than  is  necessary  to  answer  the  military  service  of 
the  public,  and  the  exigencies  of  the  province,  269. 

Maryland  bill,  observations  on  the  clauses  in,  and  objections  to,  264. 

"  act  for  the  establishment  of  religious  worship,  according  to 

the  church  of  England,"  valid,  notwithstanding  the  king's  death  ;  and 
sheriffs  might  execute  for  the  401bs.  of  tobacco,  established  by  that 
act,  for  the  maintenance  of  ministers,  299  to  320 ;  eontra,  320  to  332. 

act  of  recognition  of  queen  Anne,  by  the  assembly  of,  deemed 

improper,  332. 

. suspending  act  in  force  for  eighteen  months,  or  until  the  queen 

should  declare  her  pleasure,  but  could  not  be  continued  longer,  349 

Massachusetts  Bay,  establishment  of  a  court  of  equity  in,  194. 

construction  of  their  charter,  as  to  the  time  allowed 

to  the  king  for  the  approval  or  repeal  of  their  acts,  338. 

Merchants  abroad,  refusing  offices  necessary  to  support  the  society,  are 
debarred  of  all  privileges,  and  of  the  protection  of  the  consul,  588-. 


INDEX.  781 

Minorca,  with  algiers,  observations  on  the  report  relating  to  the  trade 

of,  623. 
Monopolies,  doubtful  whether  stat.  21  Jac.  I.  c.  3.  concerning,  extends 

to  the  plantations.  214,  581. 
action  will  not  lie  upon  that  statute  for  seizing  goods  of  the 

African  company,  580,  581. 

Murder,  persons  guilty  of,  in  the  colonies,  may  be  tried  under  a  com- 
mission issued  into  any  county  in  England,  210. 

N. 

Naturalization  act  of,  by  assembly  of  a  province,  effect  of,  332. 

• such  an  act  deemed  proper,  333. 

without  license,  will  not  discharge  a  natural-born  subject 

from  his  allegiance,  645. 

Naval  stores,  importation  of,  from  foreign  parts,  by  merchants  for  the 
use  of  the  nav}r,  prohibited  by  stat.  14  Ch.  II.  for  preventing  frauds, 
and  regulating  abuses  in  the  customs,  but  such  stores  may  be  import- 
ed in  king's  ships,  for  the  service  of  the  navy,  567. 

carriage  of,  by  a  nation  in  alliance  with  another,  to  the  enemy 

of  the  latter,  is  against  the  laws  of  nations,  621. 

Navigation,  act  of,  liberty  to  aliens  to  trade  is  against,  56 1 . 

— privileges  of  trade  proposed  to  be  granted  to  the  Spaniards, 

against,  562. 

Trading  of  Spanish  ships  to  the  British  islands,  is  against,  567,  573. 

Neutral  ships :  see  Trade. 

Neutrality,  treaty  of,  with  France :  see  Trade. 

Newfoundland,  act  for  encouraging  the  Greenland  fishery,  does  not  ex- 
tend to,  536. 

trade,  by  10  and  1 1  Wm.  III.  is  a  free  trade,  and  not  taxa- 
ble for  building  a  prison,  537. 

powers  of  justices  of  peace  there,  ib. 

objections  to  articles  between  Great  Britain  and  France  re- 


specting the  trade,  as  contrary  to  10  and  1 1  Wm.  III.  545. 
New  Jersey,  construction  of  the  king's  commission,    and  instructions  to 
the  governors  of,  with  respect  to  his  power  of  pardon,  and  suspending 
process,  or  stopping  proceedings  in  cases  of  high   treason  or  murder, 


201. 


recommendation  of  the  "  act  for  ascertaining  the  places  of 

the  sitting  of  the  representatives  to   meet  in  general  assembly,"  445. 


782  INDEX. 

New  Jersey,  objection  to  the  acts  for  shortening  lawsuits,  enforcing  the 
observance  of  the  ordinance  for  establishing  fees,  and  for  acknowledg- 
ing and  recording  deeds,  445. 

objections  to  a  naturalization  bill,  and  other  acts  passed  in 

1748,  for  punishing  counterfeiters  of  coin  and  bills  of  credit,  for 
staying  actions  against  rioters,  for  the  suppressing  of  riots,  and  for 
the  pardoning  of  rioters,  446. 

New   York,  king's  right  to  call  assemblies  in,  299. 

act,   declaring   the   illegality   of  the   proceedings    against 

Bayard  and  Hutchins,  objected  to,  as  not  conformable  with  the  queen's 
order  in  council,  340. 

-observations  on,  and  objections  to  the  act  of  1727,  for  pre- 


venting prosecution  by  information,  493,  496. 
Nolle  prosequi,  may  be  granted   on  prosecutions   for  duties,  charged  by 

an  act  of  assembly,  492. 
Nova  Scotia,  governor  and  council  of,   have  not  alone  a  power  to  enact 

laws,  263. 
until  there  be  an   assembly,  the   government  of  the  colony 

must  be  pursuant  of  the  king's  commission,  ib. 

P. 

Pardon,  effect  of,  with  reference  to  forfeitures,  176,  53  L 

Parliament,  king's  power  of  summoning  and  proroguing,    and  customs 

of,  in  that  respect,  240. 
Patents  for  new  inventions,  whether  prerogative  of  granting  extends  to. 

the  plantations    doubtful,  214 

at  common  law,  determine  by  the  death  of  the  king,  234. 

but  by  stat.  7.  and  8  W.  III.  c.  27,  and  1  Anne,  c.  8,  s.  2,  they 

continue  for  six  months   after  the  king's   death,  unless  suspended  by 

his  successor,  235. 

the  determination  of  one   patent   cannot  determine   another  in- 
dependent on  it,  254. 
Pennsylvania  charter,  construction   of,  as  to  the  six   months   thereby 

allowed  to  the  crown  to  repeal  laws  passed  in  the  province,  334. 
acts  passed  in  1723,   for   establishing  a  paper  credit,  and  act 

exempting  freeholders  to  the  value  of  fifty  acres   from  arres.t,  impro- 
per. 441.  9 

observations  on  acts  passed  in  1712,  13  14,  and  15,  442. 

Pepper,  black,  patent  respecting,  609. 


INDEX.  783 

Piracy,   persons   suspected  of,    cannot  be   detained  in  custody,   207. 

stat.  1 1  and  12  W.  III.  c.  7,  for  suppression  of,  does  not  extend 

to  cases  of  murder,  211,  527. 

i is  felony  by  the  civil  law,  511. 

• and  made  so  by  stat.  28  Hen.  VIII.  c.  1 5.  ib. 

<= by  stat.  1 1  and  1 2  W.  III.  c.  7.  special  commissioners  in  the 

colonies  may  try  piracies,  513. 

• the  goods  of  pirates  are  forfeited  on  their  condemnation ;  and 

goods,  piratically  taken  by  them  from  others,  belong  to  the  crown,  in 

case  of  non-claim  by  the  right  owners,  514,  515. 

* construction  of  proclamation  of  pardon  to  pirates  and  robbers  in 

the  American  seas,  529' 

- pardon  of  pirates  saves]theirgoods  from  forfeiture,  but  goods  pirati- 
cally taken  may  be  recovered  by  the  owners  by  action,  531. 

Plantations  :  see  the  several  titles  in  the  index. 

Plantation  and  culture  of  lands,  is  a  condition  in  law,  annexed  to  the 
title  to  lands  in  the  colonies,  387. 

Plantation  trade,  act  of  7  and  8  W.  III.  for  regulating  abuses  in,  ex- 
tends only  to  governors  and  commanders  in  chief,  263. 

Prerogative:  see  title  King. 

Prescription,  royal  fish  may  be  claimed  by,  150. 

Prescription,  a  colony  acquired  within  time  of  memory,  excludes  pre- 
scription against  the  crown,  ib. 

Prohibitions,  the  constant  remedy  of  the  common  law  to  prevent  the 
encroachments  of  the  civil  law,  516. 

their  necessity  and  propriety,  5 1 7. 

if  legally  granted,  cannot  be  hindered  by  the  governors  | 

if  illegally,  an  appeal  is  the  proper  remedy,  521. 

Proprietary  plantations,  laws  made  in,  should  be  subject  to  the  king's 
approbation,  340. 

and  should  not  exceed  the'charter,  290. 

Prussia,  treaty  of  commerce  with,  observations  on,  325* 

R. 

Recognition,  of  a  sovereign  act  of,  improper,  332* 

Recoveries :  see  title  Fines,. 

Remedy  of  the  crown  where  grantees  hold  more  lands  than  the  words 

of  the  grant  warrant,  where  the  grants  are  voidable,  175,  176. 
Repeal  of  acts  of  assembly,  takes  place  from  its  notification,  292; 


784  INDEX. 

Repeal  time  allowed  to  the  crown,  to  repeal  laws,  is  to  be  counted  from 

the  period  of  their  delivery  to  the  privy  council.  337. 
Representation,  where  the  right  of,  is  founded  on  instructions  from  the 

crown,  it  may  from  time  to  time  be   altered  in  the   same  manner,  if 

there  have  been  no  act  of  assembly  approved  by  the  crown  to  the  con- 
trary, 269,  273,  275. 
Reprisals  will  not  lie,  where  there  is  no  denial   of  justice,   nor  a  delay 

amounting  to  a  denial,  316. 
when  to  be  granted,  and  what   steps   should  be  taken   before 

they  are  granted,  618,  619,  620. 
Romish  priests,  laws  of  England  in   force  in  the  plantations   against, 

43,  44. 
Russia  Company,  their  privileges  of  importation,  against  the  navigation 

act  and  the  charter  of  the  East  India  company,  587. 

s. 

Scotchman  is  an  Englishman  within  the  act  for  regulating  abuses  in  the 

plantation  trade,  644. 
Seal  Great,  of  a  colony,  all   grants  of  offices,   and   acts   of  the  crown 

should  be  under,  247,  248. 
but  the  governor's  private  seal  may  be  used,  if  it  be  the 

custom,  ib. 
Seamen,  the  king  may,  by  proclamation,  under  the  great  seal  command 

them  to  return  if  employed  in  a  foreign  service,   and  prohibit  them 

from  going  into  a  foreign  service,  561. 

Seamen,  cast  away,  duty  for  relief  of,  and  observations  on  the  distribu- 
tion and  evasion  thereof,  588.  • 
Subjects  English,  carry  with  them  the  laws  of  England  whereever  they 

form  colonies,  and  receive  the  king's  protection,  206,  517. 
such  colonies  cannot  be  taxed,  but  by  the   parliaments  of 

Great  Britain,  or  with  the  consent  of  some  representative  body  of  the 

people  of  the  island,  23 1. 
may  be  prohibited  from  going  out  of  the  realm  without 


license,  231,  257. 
and  may,  except    they  are   merchants,   be  recalled  by 


letters  of  privy  seal,  554,  560. 
and  if  they  do  not  return,  they  forfeit  the  rents  of  their 


lands  for  life,  and  all  their  personal  estate,  560,  646. 
• may  be  restrained  by  the  crown  from  liberty  of  tradingj 


INDEX.  785 

and  punishable  for  a  breach  of  the  regulations  of  the  crown,   549, 

to  554  and  582,  to  646. 

Subjects,  English,  how  they  may  become  aliens,  666. 
Surrender,  by  proprietors  and  governors  to  the  crown,  of  their  powers 

and  privileges,  67,  69,  72. 

method  of  making  such  surrender,  71. 

after  a  surrender,  by  trustees,  of  a  charter  for   establishing  a 

colony,  the  king  should  issue  a  proclamation  under  the  great  seal,  in 

order  to  authorize  officers  to  continue  in  the   exercise  of  their   offices 

until  a  new  government  is  established,  198. 
Suspension  of  rights  by  conquest  of  land,  revival  of  those  rights  on  a 

reconquest,  131. 

T. 

Taxation  of  colonies,  king's  power  of,  158 ;  and  see  title  King. 
Taxes  should  be  granted  to  the  king,  his  heirs  and  successors,  360. 
Temporary  laws  in  the  plantations,  whereby  the  king's  prerogative  was 

evaded,  to  his  governors  in  plantations  not  granted  in   property,    and 

in  proprietary  plantations  by  an  act  of  the  parliament  of  Great  Britain 

338. 
Tenure  of  lands  in  Virginia,  being  free   and  common  socage,  as  of  the 

manor  of  East  Greenwich,   where  any  person  dies   without  heirs,  his 

lands  escheat  to  the  crown,  142. 
but   escheats  on  attainder  of  treason   belong  to  the  crown,  as  a 

prerogative  royal,  ib. 
Title  to  lands  in  the  colonies  must  be  supported  by  an  actual  culture  and 

plantation  of  it,  387. 
Trade  is  under  the  control,  management,  and   direction   of  the   king, 

549. 

injuries  to  it,  punishable  by  indictment  and  information,  551. 

carried  on  from  France  to  Portugal  by  unlicensed  English  vessels, 

against  the  stat.  3d  and  4th  Anne,  571. 

in  neutral  ships,  with  an  enemy's  country,  prohibited,  576. 

license  to  trade,  with  a  prohibition  to  others,  is  good  in  law,  582. 


Treason  escheats,  on  attainder  of:  see  title  Escheats. 
foreign  may  be  tried  in  the  colonies  by  -virtue  of  a  special  com- 
mission from  the  crown,  529. 
Treasure  trove  in  the  Bahamas  the  property  of  the  crown,  151. 

100 


786 


INDEX. 


Treaties,  subjects  breaking  and  taking  commissions  from  a  foreign  pow- 
er to  cruizo  against  the  king's  allies,  are  guilty  of  an  offence  against 
the  law  of  nations,  and  by  the  civil  law,  of  the   "  crimen  lessee  ma- 
jestatis,"  and  by  the  law  of  England  are  punishable   by  fine   and  im- 
prisonment, 617,  618. 

' French  ships  trading  in  breach  of  treaties,  in  British  planta- 
tions, subject  to  seizure  and  confiscation,  under  the  treaty  of  neutrali- 
ty in  1686,  and  vice  versa,  627. 

-but  British  ships  not  liable  to  confiscation   in   England,   for 


breach  of  the  treaty,  628. 

that  treaty  in  force  in  1756,  629,  et  seq. 

are  compacts,  superseding  the  law  of  nations,  630. 

,  obligations  in,  may  be  entered  into  by  implication,  631. 

— essence  of  a  definitive  treaty  of  peace,  that  the  commercial  and 


friendly  intercourse  of  the   contracting  powers  is  replaced  in  its  for- 
mer state,  633. 

u. 

Union  with  Scotland,  goods  imported  into  London  after,  seized  as  for- 
feited, and  suggestion  of  mode  of  proceeding  for  discharging  the 
seizure,  583. 

United  States,  whether  persons  born  in  the  king's  allegiance,  and  remain- 
ing in  the  United  States,  after  the  acknowledgment  of  their  indepen- 
dence, were  aliens  or  subjects,  from  the  period  of  that  acknowledg- 
ment, 648 

Usage  long  uninterrupted,  of  a  law,  imports  tbe'eonsent  of  the  proprie- 
tor and  people  of  a  colony,  that  it  should  be  in  force  there,  208, 
228. 

Usage,  by  stat.  25  Geo.  II.  c.  6.  s.  10.  it  was  considered  sufficient  to 
have  extended  an  act  to  the  colonies,  ib.  209. 

Y. 

Vice- Admiral,  by  his  patent,  is  receiver  of  the  dues  and  perquisites  of 
the  admiralty  for  the  lords  commissioners,  and  they  are  restrained  by 
their  patent  from  granting  the  power  of  receivicg  them  to  any. other 
person,  522. 

Virginia,  act  of  revenue  of,  void,  not  being  conformable  to  the  method 
prescribed  by  the  governor's  commission  and  a  new  bill  recommend- 
ed, 344. 


INDEX.  787 

Virginia,  construction  of  the  clauses  in  the  act  for  laying  a  duty  on 
liquors,  and  respecting  the  appropriation  and  application  of  200/.  per 
anum,  for  the  relief  of  the  college  of  William  and  Mary,  403. 

observations  upon  acts  of  the  assembly,  passed  in  1700,  1701 

and  1702,  405. 

objections  to  the  acts  for  the  better  government  of  convicts 


imported,  and  for  the  further  preventing  the  clandestine  transportation 
of  persons  out  of  the  colony,  that  they  amounted  to  a  prohibition  of 
convicts  being  imported  into  the  province,  436. 
act  passed  in  1723  objectionable,  from  its  preventing  free  ne- 


groes, mulattoes,  and  Indians,  from  voting  at  elections,  439. 

w. 

War  is  a  temporary  exertion  of  force,  to  decide  a  point  of  interest, 

which  no  human  tribunal  can  determine,  633. 

Wares  painted,  importation  of,  prohibited  by  3  Edward  IV.  c.  4, 

579. 
Warrants  for  issuing  grants  not  sufficient  to  support  those  grants,  if 

otherwise  irregular  and  void,  173, 
to  disseize  a  person  of  his  freehold,  without  trial,  contrary  to 

law,  375. 
Waste  and  unimproved  lands,  where  persons  under  grants  from  the 

crown  have  possessed,  it  is  hardly  possible  for  a  stale  title  to  prevail 
against  them,  105. 
West  Indies,  whether  the  general  assemblies  of  the  provinces  they  are 

entitled  to  the  privileges  claimed  by,   and  allowed  to  parliaments  of 

England,  239. 

Wreck,  no  salvage  duty  or  gratification  due  on ;  and  nothing  but  rea- 
sonable compensation  for  labor  in  saving  cargo,  625. 

,  cargo  of,  in  the  nature  of  pledge  for  the  frieght,  ib. 

Writ  of  cessavit,  is  only  where  a  tenure  is  created  by  a  grant  in  fee 
».farm,  149. 

does  not  lie,  of  lands  in  a  colony,  on  the  settlement  of 

which  the  statutes  which  gave  the  writ  were  put  in  practice,  ib. 


./.,;' 

*  •::. 


**>:> 

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